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NAVY | BCNR | CY2007 | 06929-07
Original file (06929-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~51OQ


                                                       SMW
 Docket No: 6929-07
21 March 2008
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD

Ref:     (a) 10 U.S.C. 1552
End:     (1) Case Summary
                   (2) Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, applied to this Board requesting an entry level separation, a change in his RE—4 reenlistment code, and removal of all reference to alcohol rehabilitation failure from the record.
2.       The Board, consisting of Mr. Ms. , and Mr. reviewed Petitioner’s allegations of error and injustice on 19 March 2008, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
                  b.       Although the Petitioner’s application was not filed in a timely manner, it is in the interest of justice to waive the statute of limitations and review the application on its merits.
c.       On 27 March 1996, Petitioner enlisted in the Navy at age
 22.      He subsequently had a medical evaluation that he requested regarding alcohol abuse,. which resulted in being referred for alcohol abuse treatment and a psychiatric consultation. On 29 August 1996, a psychiatric evaluation diagnosed him as having a depressive disorder, primarily dysthymja, with post traumatic stress disorder (PTSD), and alcohol abuse. On 29 August 1996, while he was still in an entry level status, his command was notified by the mental health unit that he was disqualified for further service and recommended for administrative separation due to his diagnosis of having a depressive disorder that existed prior to enlistment. The recommendation for administrative separation further indicated that his disqualification for further service represented an error in accession, given that he only had five months of active service.
d.       On 10 September 1996, a service record entry was made that counseled Petitioner regarding his diagnosis of having a depressive disorder and advised him that any further manifestations of his personality disorder that prevented him from satisfactory performance of duty would terminate the reasonable period of time for rehabilitation, and may result in disciplinary action or an other than honorable (0TH) discharge. On 18 September 1996, his commanding officer stated by letter that he was alcohol dependent and would be assigned to a residential alcohol rehabilitation program. On
 24 September 1996, he refused to participate in treatment.
e.       On 24 September 1996, Petitioner’s commanding officer initiated administrative separation by reason of convenience of the government due to a personality disorder and alcohol rehabilitation failure. In connection with this processing, he acknowledged the separation action. On 15 October 1996, the separation authority approved the separation recommendation and directed a general discharge by reason of convenience of the government due to a personality disorder and alcohol rehabilitation failure. On 12 November 1996, he was separated with a general discharge by reason of convenience of the government due to alcohol rehabilitation failure and assigned an RE-4 reenlistment code.
f.       In Petitioner’s application, his counsel states that the Navy’s action in processing him for a general discharge constitutes an injustice since he should have been processed as either an entry level separation or given an honorable discharge. Petitioner’s counsel further states in essence that the Navy’s continued classification of him as an alcohol rehabilitation failure and the assignment of the RE-4 reenlistment code also constitutes an injustice. Petitioner’s counsel requests that all references to alcohol rehabilitation failure be removed from the naval record, his characterization of service be changed, and his separation and reenlistment codes be changed to reflect eligibility for reenlistment with a waiver.

g.       Regulations authorize separation of members by reason of erroneous enlistment if it would not have occurred had disqualifying factors been known prior to enlistment, and it was not the result of fraudulent conduct on the part of the member. Furthermore, regulations regarding erroneous enlistment also specify that members who are diagnosed as alcohol dependent while in an entry level status may be separated by reason of erroneous enlistment. Regulations also authorize assignment of an RE-3E reenlistment code to members who are discharged by reason of erroneous enlistment.
h.       Regulations authorize an entry level separation for members whose separation is initiated while still in an entry level status, which is within the first 180 days of continuous active duty. Regulations further direct prompt separation of members who are found to have no potential for further service. Regulations do not classify a depressive disorder or dysthymia as a personality disorder.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. In this regard, the Board finds that Petitioner’s administrative separation was not processed according to regulations. Specifically, a psychiatric evaluation found that he was disqualified for further service due to disqualifying factors that existed prior to enlistment, specifically, a depressive disorder, dysthymia with PTSD, and alcohol abuse. At that time, he had five months and seven days of active service. Since regulations authorize separation of members by reason of erroneous enlistment for disqualifying factors found after enlistment, which also includes alcohol dependency found within the first 180 days of active duty, an entry level separation by reason of erroneous enlistment should have promptly been executed when his command was notified that he was unqualified for further service. Furthermore, there is no evidence in the record to show that he was ever diagnosed as


having a personality disorder and he should not have been considered an alcohol rehabilitation failure since he was found disqualified for further service while in an entry level status. Therefore, he did not meet the criteria established by regulations for an administrative separation by reason of convenience of the government due to a personality disorder or alcohol rehabilitation failure. Accordingly, the record should be corrected to show that he was discharged with an entry level separation by reason of erroneous enlistment, assigned an RE-3E reenlistment code, and by removal of all references to a personality disorder, alcohol rehabilitation, alcohol rehabilitation failure, and his refusal to participate in treatment or alcohol rehabilitation.









RECO MM ENDATION:
a.       That Petitioner’s naval record be corrected to show that he was separated with an entry level separation by reason of erroneous enlistment on 12 November 1996, vice the general discharge by reason of alcohol rehabilitation failure that was actually issued on that date.
b.       That Petitioner’s naval record be further corrected to show that he was assigned an RE—3E reenlistment code on 12 November 1996, vice the RE-4.
c.       That Petitioner’s naval record be further corrected by removing all references to a personality disorder, alcohol rehabilitation, alcohol rehabilitation failure, and his refusal to participate in treatment or alcohol rehabilitation.
d.       That this Report of Proceedings be filed in Petitioner’s naval record so that all future reviewers will understand the reason for the changes in his record.
4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.

ROBERT D. ZSALMAN        BRIAN J. GEORGE
Recorder         Acting Recorder

5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.

         W. DEAN PFEIFFER
Executive Director
        
        




































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