Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND12-00588

ex-CM3, USN

Current Discharge and Applicant’s Request

Application Received: 20120119
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060117 - 20060807  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060808	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20081114	Highest Rank/Rate:  CM3
Length of Service:   Year(s)     Month(s)   07 Day(s)
Education Level:  	AFQT:  49
Evaluation Marks:	Performance:  3.33 (3)	Behavior:  3.33 (3)	OTA:  3.42

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), change 24 effective 28 July 2008 until 24 April 2011, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITION.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant wishes to re-enlist.
2.	The Applicant contends his Honorable Character of Service and Narrative Reason for Separation of Condition, Not a Disability on his DD Form 214 does not match up with his Re-Entry Code of RE-4 and Separation Code of KFV.
3.	The Applicant contends his discharge was incorrectly based on a medical condition that he does not have.

Decision

Date:  20130110		Location:  Washington D.C.	Representation:  NONE

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service contained no evidence of misconduct.  Furthermore, the NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel and submit a written statement.  The Applicant’s record also reflects a personal request from the Applicant for separation from the Naval Service in which he made the following statement, “I feel due to my adjustment disorder and severe depression I would serve no benefit to the Navy by remaining on Active Duty or Reserves.”  The Applicant’s record also reflects an appeal from the Applicant to the Board for Correction of Naval Records (BCNR), who voted 2-1 to change the Applicant’s Re-Entry Code from RE-4 to RE-3G but to keep the Narrative Reason for Separation to Condition, Not a Disability.  

:  (Nondecisional) The Applicant wishes to re-enlist.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  As noted above, the BCNR changed the Applicant’s Re-Entry Code from RE-4 to RE-3G (Condition, not physical disability, interfering with performance of duty).  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  The Applicant’s Re-Entry Code of RE-3G does not prevent him from military service.  However, he has to obtain a waiver from a military service, which can only be done through a recruiter, to serve again.  Military services dictate waiver policies depending on their manpower needs.
 
:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his Honorable Character of Service and Narrative Reason for Separation of Condition, Not a Disability on his DD Form 214 does not match up with his Re-Entry Code of RE-4 and Separation Code of KFV.  The NDRB determined Blocks 24, 25, 27, and 28 are correct on his DD Form 214.  Because he did not have any misconduct or other significant negative aspects of service and served more than 180 days of continuous active duty, the Applicant received an Honorable Character of Service.  Competent medical authority diagnosed the Applicant with Adjustment Disorder, which is a basis for administrative separation under Naval Military Personnel Manual (MILPERSMAN) Article 1910-120, which directs that DD Form 214 Block 28 should read “Condition, Not a Disability” when a servicemember is discharged for this reason.  Also in this article, the Separation Code should be KFV when the discharge is voluntary.  Based upon the Applicant’s request to be discharged, the NDRB determined the Separation Code is accurate.  Finally, as noted above, the BCNR changed the Re-Entry Code from RE-4 to RE-3G, which the NDRB determined to be proper.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was incorrectly based on a medical condition that he does not have.  On 12 August 2008, the Applicant was diagnosed with Adjustment Disorder with Depressed Mood and Anxiety by a staff psychiatrist from the Naval Branch Health Clinic, Gulfport, MS.  After this diagnosis, the Applicant submitted a statement to his Commanding Officer requesting separation based on a Physical or Behavioral Condition Not Amounting to a Disability.  In this statement, he wrote, “I respectfully request to be separated due to being severely depressed….  I have no drive and find difficulty in just waking up, going to work, or maintaining proper military bearing and/or appearance every morning….  I feel adjusting to the Navy way of life has caused the most stress on me, and I believe that I would only feel better when I’m home around family.”  Unless substantial and credible information exists to rebut the medical authority’s findings that occurred at or about the time of the Applicant’s separation from service, the NDRB does not have jurisdictional authority to override medical authority diagnoses or findings that result in administrative separation.  Pursuant to MILPERSMAN Article 1910-122, members may be processed for separation based on a mental health professional’s clinical diagnosis for physical or behavioral conditions that impair a member’s performance, but do not amount to a physical disability but can affect potential for continued Naval Service.  The NDRB found no evidence, nor did the Applicant provide any, to indicate he had overcome his deficiencies due to having an Adjustment Disorder while still in the service.  Further, the Applicant stated that he was released from the Navy due to the thought that he had Post-Traumatic Stress Disorder.  This is incorrect.  As stated above, competent medical authority diagnosed the Applicant with Adjustment Disorder with Depressed Mood and Anxiety.  The Applicant requested discharge from the Navy, and it was approved based on a Condition, Not a Disability.  After a complete review of the records, the NDRB determined the discharge was both proper and equitable.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water