Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: nuchy.garcia-anglin
Company: NCPB

Docket No. ND12-01797

ex-SK3, USN

Current Discharge and Applicant’s Request

Application Received: 20120823
Characterization of Service Received:  (per DD 214) HONORABLE
Narrative Reason for Discharge:  (per DD 214) CONDITION, NOT A DISABILITY
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-120 [CONDITION, NOT A DISABILITY]

Applicant’s Request:	Characterization change to:	NONE REQUESTED
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19910821 - 19920212  COG	Active:	USN	19920213 - 19931103  HON
	USNR (DEP)	20030731 - 20030810  COG

Period of Service Under Review:
Date of Current Enlistment:  20030811	Age at Enlistment:  31
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20050624	Highest Rank/Rate:  SK3
Length of Service:  01 Year(s)   10  Month(s)   14 Day(s)
Education Level:  12	AFQT:  48
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	GWOTSM NDSM GCM

Periods of UA/CONF:  NONE

NJP:  NONE	SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- 20050409:	For the following deficiencies in your performance and/or conduct are identified: Physical Condition (lower back pain) NO ORGANIC CAUSE.

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 11 effective 25 May 2005 until 23 July 2006, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

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 wants to receive health insurance.
2.	The Applicant contends he should have been medically retired from the Navy.

Decision

Date:  20130530	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain HONORABLE.
By a vote of 5-0 the Narrative Reason shall remain CONDITION, NOT A DISABILITY.

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning that informed the Applicant on 9 April 2005 that he could be discharged due to his inability to perform his duties as the result of lower back pain that had no organic cause.  On 23 May 2005, the Applicant was notified of his command’s intent to administratively discharge the Applicant due to Convenience of the Government - Physical Conditions.  The Applicant signed this notification and waived his rights, in writing, to consult with a qualified counsel, submit a written statement, and elect to receive a General Court-Martial Convening Authority review.  The Applicant was not entitled to an administrative board.  On 24 June 2005, the Applicant’s command discharged him from the Navy with an Honorable characterization of service for Condition Not a Disability.  Contrary to the Applicant’s claim that he was discharged within two days of notification, he was warned in April 2005 that he could be discharged, was notified in May 2005 of his command’s intention to administratively separate the Applicant, and was finally discharged over a month later.

Issue 1:  (Nondecisional)  The Applicant wants to receive health insurance.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to insurance benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he should have been medically retired from the Navy.  Whenever a service member’s performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause.  When the command suspects a physical condition interferes with the service member’s effective performance of duty, the service member should be referred to the appropriate medical authority.  If examination by a medical officer confirms the service member is suffering from a physical condition apparently beyond the individual’s control and indicates that the condition is not a disability, a command should initiate separation proceedings per Naval Military Personnel Manual Article 1910-120 (Separation by Reason of Convenience of the Government - Physical or Mental Conditions).  Over the course of the Applicant’s 22-month enlistment, Navy medical authorities examined the Applicant many times for lower back pain.  Physicians on the USS RONALD REAGAN evaluated and treated the Applicant over 15 times during his 8 months onboard the aircraft carrier.  The Applicant was also seen by physical therapists onboard the ship, placed on light duty multiple times, was waived for the Fall 2004 and Spring 2005 Physical Readiness Tests, seen by the Naval Medical Clinic San Diego Orthopedics Spine Clinic and Pain Management Clinic, and received multiple imaging studies to include an MRI.  After all of this evaluation and treatment, an MRI revealed a minimal lumbar spondylosis, but the physicians’ final determination was that there is no organic cause for his lower back pain.  The Applicant was counseled on numerous occasions by medical authorities on these normal results and was declared fit for full duty on 3 May 2005.  The USS RONALD REAGAN General Medical Officer stated on 13 May 2005 that “while there is no organic cause for the member’s pain, his condition is not felt due to malingering.  It is instead felt to be due to chronic musculoskeletal pain perhaps exasperated by member’s poor expectations of pain relief and probable non-compliance.”  He 

further stated the Applicant “is NOT considered to be medically ill (no medically boardable condition), but manifests a long-standing disorder of such severity to render this individual unsuitable for continued military service in the U.S. Navy.”  The Applicant’s lower back pain met the requirements for administrative separation for Condition Not a Disability and did not qualify for a medical retirement.

The fact that the Applicant is receiving 60% disability from the Department of Veterans Affairs (VA) has no bearing on the Applicant’s reason for discharge from the Navy.  Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Navy.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization.  After careful review, the NDRB determined the Applicant’s discharge was proper and equitable.  He was dealt with fairly, he received a considerable number of medical evaluations and treatment, and received the most appropriate narrative reason for separation.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain HONORABLE and the narrative reason for separation shall remain CONDITION, NOT A DISABILITY.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 	RESTR - Restriction	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	CBW - 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