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NAVY | DRB | 1997_Navy | ND97-01253
Original file (ND97-01253.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND97-01253
Applicant’s Request
The application for discharge review, received 970807, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary discharge review, he did not list any representative on the DD-293


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980825. The NDRB determined that the discharge was inequitable. The discharge shall be changed to: ENTRY LEVEL SEPARATION/SECRETARIAL PLENARY AUTHORITY; authority: NAVMILPERSMAN, Article 3630900.

PART I - APPLICANT’S ISSUES (verbatim)
1. I have passed the exact test (MMPI 2) in the civilian world as given to me while in service. I am more sure of myself now than I was when I was 18. I was very young when I enlisted and was not mentally prepared for military life.

2. I have completed 27 college credits which takes a great deal of mental & physical strength. If I knew then what I know now I would have been better off.

3. Considering I was only 18 and out of high-school 4 days prior to enlisting I believe I deserve a chance at a profession, and do not want a mistake made 6 years ago to keep me from that.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        USNR (DEP)                900802 - 910618  COG

 Period of Service Under Review :
Date of Enlistment: 910619                                 Date of Discharge: 910716

 Length of Service (years, months, days):

         Active:          00 00 28
         Inactive:        00 00 00

 Age at Entry: 18                                            Years Contracted: 4

 Education Level: 12                                          AFQT: 58

 NEC: None                                                    Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):
No Marks Assigned (NMA)

 Performance: NMA                           Behavior: NMA                      OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Nonjudicial Punishment(s): None           Court(s)-Martial: None

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge:
ENTRY LEVEL SEPARATION/Entry Level Performance and Conduct; authority: NAVMILPERSMAN, Article 3630200.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1


 910619:  Joined NAVCRUITRACOM Orlando, FL

910703:  Recruit Evaluation Unit Psychiatric evaluation:
Diagnosis: Adjustment disorder with mixed emotional features, severe, manifested by impulsive behavior, angry affect and depressed mood. Personality Disorder, NOS, severe with Borderline, Antisocial and passive-aggressive features.
Recommendation: To Division Officer for action. It is strongly recommended that this recruit be expeditiously separated due to a EPTE, Personality Disorder. Not fit for Dive Program.
Follow-up Plan: Follow-up appointment scheduled for 10 July 1991.
910705:          Applicant advised of his rights and having chosen not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. Applicant did not object to separation. Receipt acknowledged.
910709:  Commanding officer directed an Entry Level Separation by reason of Entry Level Performance and Conduct. Commanding officer’s verbatim comments: SR (applicant) has been diagnosed by a clinical psychologist as having an adjustment disorder. Entry Level Separation is directed.

910716:  Discharged ENTRY LEVEL SEPARATION/ENTRY LEVEL PERFORMANCE AND CONDUCT; authority: NAVMILPERSMAN, Article 3630200.
RECORDER’S NOTES:

 1 The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

PART IV - EXTRACT OF PERTINENT REGULATION/LAW
A . Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, Standards for Discharge Review, states, in part:
“9.2 Propriety of the Discharge

a. A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that:

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b. When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c. The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d. The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”
B . SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, paragraph 9.3, Equity of the Discharge , states, in part, that a discharge shall be deemed to be equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:

1. Quality of service, as evidenced by factors such as:

a. service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

b. awards and decorations;

c. letters of commendation or reprimand;

d. combat service;

e. wounds received in action;

f. records of promotions and demotions;

g. level of responsibility at which the applicant served;

h. other acts of merit that may not have resulted in formal recognitions through an award or commendation;

i. length of service during the service period which is the subject of the discharge review;

j. prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

k. convictions by court-martial;

l. records of nonjudicial punishment;

m. convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

n. records of periods of unauthorized absence;

o. records relating to a discharge in lieu of court-martial.

2. Capability to serve, as evidenced by factors such as:

a. Total capabilities. This includes an evaluation of matters such as age, educational level, and aptitude scores. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

b. Family and personal problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

c. Arbitrary or capricious actions. This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

d. Discrimination. This includes unauthorized acts as documented by records or other evidence.
C. SECNAVINST 5420.17C, enclosure (1), Manual for Discharge Review, implements within the naval service the uniform policies, procedures and standards for the review of discharges. Paragraph 2.11, Regularity of Government Affairs, states: "There is a presumption of regularity in the conduct of governmental affairs. This presumption can be applied in any review unless there is substantial creditable evidence to rebut the presumption."

D . Naval Military Personnel Manual, (NAVPERS 15560A, Change 14, effective 22 Dec 90 until 14 Aug 91), Article 3620200, SEPARATION OF ENLISTED PERSONNEL FOR CONVENIENCE OF THE GOVERNMENT , states:

1. Commander, Naval Military Personnel Command (COMNAVMILPERSCOM), may authorize or direct the separation of enlisted or inducted members prior to the expiration of enlistment or other obligated service for any one of the reasons listed here. The term "separation" as used in this article includes discharge, transfer to the Naval Reserve and concurrent release to inactive duty, release to inactive duty in certain cases of naval reservists serving on active duty who have service obligation time remaining, or transfer of inactive duty members from the Selected Reserve to the Individual Ready Reserve. A member may not request separation per this article for reasons pertaining to involuntary discharge or separation. Separation of a member for Convenience of the Government shall not be effected until all outstanding disciplinary actions involving the member have been resolved.

a. Hardship. Upon request of the member and concurrence of COMNAVMILPERSCOM, separation may be directed when genuine undue hardship exists. Procedures for submission of hardship requests are prescribed in MILPERSMAN 3620210.

b. Pregnancy/Childbirth. Upon request of member. Procedures and guidelines are prescribed in MILPERSMAN 3620220.

c. Parenthood. A member, who is unable to perform duties assigned, is repetitively absent, or is unavailable for worldwide assignment or deployment due to parenthood, may be separated under this provision. Procedures and guidelines are contained in MILPERSMAN 3620215.

d. To Further Education. A member may be separated within 3 months of the expiration of enlistment to attend an institution of higher education (college or university), vocational or technical school. The Deputy Chief of Naval Personnel is the separation approving authority and not the member's commanding officer. Procedures and guidelines are prescribed in MILPERSMAN 3620235.

e. Conscientious Objection. A member may be separated if authorized under DOD Directive 1300.6 Subj: Conscientious Objectors. Procedures for submission of application are prescribed in MILPERSMAN 1860120.

f. Surviving Son or Daughter. A member may be separated if authorized under DOD Directive 1315.15 Subj: Special Separation Policies for Survivorship. Procedures and guidelines are prescribed in MILPERSMAN 3620240.

g. Other Designated Physical or Mental Condition. Member may be separated on the basis of designated physical or mental conditions considered inherent or developmental defects that do not constitute a physical disability. Such conditions would be those considered to interfere with a member's performance of duty or pose a threat to his or her safety or well-being, and may further render an individual incompatible with the naval service. These conditions include, but are not limited to, somnambulism (sleepwalking), enuresis (bedwetting), personality disorders (as described in the Diagnostic and Statistical Manual (DSM III) of Mental Disorders), and excessive height. Commanding officers with special court-martial convening authority (SPCMCA) have the authority to effect the separation of a member processed under this provision provided the member has received counselling concerning the deficiencies, and disciplinary action including punishments awarded for any pending offenses has been completed, and the member does not object to the separation. Should member object to the separation, forward the completed case to NMPC-242 for final determination. In most cases, a medical board is neither required nor desired; however, to ensure adequate evaluation to rule out any underlying disease and to ensure establishment of the diagnosis, the following minimum documentation is required and must be presented with each request:

(1) Somnambulism

- Sworn statements from military members documenting at least one sleepwalking episode. The episode must be witnessed by at least two military members.

- Copy of medical evaluation (must be legible and readable copies or signed transcriptions thereof). Diagnosis of somnambulism required.

- Copy of Page 9, NAVPERS 1070/609, Enlisted Performance Record.

(2) Enuresis

- Urological Evaluation (must be legible and readable copies or signed transcriptions thereof)

- Copy of Page 9 (NAVPERS 1070/609)

(3) Personality Disorders. Member may be separated under this provision when the personality disorder interferes with the member's performance of duty or poses a threat to member's safety or well-being, and further renders an individual incompatible with the naval service. Procedures and guidelines are prescribed in MILPERSMAN 3620225.

(4) Motion/Air Sickness

- Otolaryngology (ENT) Consultation (must be legible and readable copies or signed transcriptions thereof)

- Copy of health record entries relating to treatment of condition

- Copy of Page 9 (NAVPERS 1070/609)

(5) Allergies

- Allergy/Internal Medicine Evaluation (must be legible and readable copies or signed transcriptions thereof)

- Copy of Page 9 (NAVPERS 1070/609)

(6) Excessive Height

- Orthopedics Consultation (must be legible and readable copies or signed transcriptions thereof)

- Copy of Page 9 (NAVPERS 1070/609)

h. Failed to Meet Physical Readiness Standards (obesity/PRT). A member may be separated for failing to meet the standards set forth in the physical readiness program due to obesity or failure of the physical readiness test. The physical readiness standards are contained in MILPERSMAN 3420440. (See MILPERSMAN 3620250 for additional guidelines in processing member for discharge under this provision.)

i. Aliens. A member who is an alien may be separated at the member's request, with the concurrence of Commander, Naval Military Personnel Command (NMPC-243), on the basis of being an alien who no longer wishes to serve. For the purposes of this article, an alien is defined as an individual who is not a natural born nor a naturalized citizen of the United States. See MILPERSMAN 3620260.

j. Upon the written request of a member enrolled in any of the Navy Officer Candidate Programs, including the Naval Academy, to be disenrolled from such program; or when a member of any of the Navy Officer Candidate Programs, including Naval Academy, is disenrolled from or fails to satisfactorily meet any of the requirements for completion of the officer candidate program in which enrolled, provided the member is not considered qualified for enlisted status. The Chief of Naval Education and Training is authorized to approve the discharge of members disenrolled from such programs except Naval Academy. Under the direction of the Chief of Naval Education and Training and the Chief of Naval Air Training, the Commanding Officer, Naval Aviation Schools Command is authorized to approve the discharge of members disenrolled from the AOC, NFOC, AI, AMDOC, and AVROC Programs. Commanding officers of Navy Recruiting Districts (NRD) are authorized to approve the discharge of inactive members awaiting attendance at Officer Candidate School (OCS) or Aviation Officer Candidate School (AOCS), who no longer meet eligibility criteria. Discharge of a member who requests disenrollment or who fails to satisfactorily meet requirements for graduation from the Naval Academy is subject to approval of the Secretary of the Navy or the President according to10 U.S.C. 6961 and 6963. All other requests for separation under this provision is [sic] to be forwarded to the Commander, Naval Military Personnel Command for determination.

k. Review Action. A member may be separated if the member is placed on appellate leave awaiting review of a punitive discharge, per SECNAVINST 1050.1, and whose punitive discharge is set aside, suspended, remitted, or disapproved during the review process.

2. Full information regarding the reason for separation and a recommendation concerning reenlistment based upon enlisted performance evaluations shall be entered on Page 13 of the service record in connection with all cases within the purview of this article.

3. Characterization of service or description of separation shall be Honorable, General, or Entry Level Separation following guidance in MILPERSMAN 3610300.

4. Separation processing for failing to meet the physical readiness standard (obesity/PRT failure), Parenthood, or Personality Disorders may not be initiated until the member has been counseled by his or her command concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected on an appropriate Page 13 service record entry. This requirement is particularly important in that a member should not be separated for the reasons above unless there have been documented efforts at rehabilitation. Such efforts must include the following and be documented in the member’s service record:

- Written notification concerning deficiencies or impairments.

- Specific recommendations for corrective action, indicating any assistance available.

- Comprehensive explanation of the consequences of failure to undertake successfully the recommended corrective actions.

- Reasonable opportunity for the member to undertake the recommended corrective action. Members with broken service have previously demonstrated appropriate military behavior and conformance to military regulations and customs. These members should adapt more rapidly to appropriate military behavior and, therefore, failure to rehabilitate themselves could be evident in a shorter period of time.
E . The Naval Military Personnel Manual, (NAVPERS 15560-A, Change 13, effective 901012-910814, Article 3620225, SEPARATION OF ENLISTED PERSONNEL AT THE CONVENIENCE OF THE GOVERNMENT - BASIS OF PERSONALITY DISORDER , states:

1. Separation may be directed by Commander Naval Military Personnel Command (NMPC-242) or Officer with Special Court Martial Convening Authority (SPCMCA), when member has been diagnosed with a personality disorder (as described in the Diagnostic and Statistical Manual (DSM III) of Mental Disorders) and that such condition will interfere with a member's performance of duty or pose a threat to his or her safety or well-being, and may further render an individual incompatible with the naval service.

2. The commanding officer is the initial authority responsible for determining if and when a member shall be processed for separation by reason of Convenience of the Government due to personality disorder.

3. When a member is referred for psychiatric evaluation because of a possible personality disorder, commanding officers are expected to maintain liaison with the medical authority to find out if any particular action of the command might assist the member in adjusting to naval service. In this regard, medical authorities will be furnished with service records and any other available documents of the member's performance to assist in their final evaluation. Information concerning psychiatric evaluation and the evaluations themselves shall not be transmitted through, or by the member concerned, nor should the member be led to believe that separation is or is not assured.

4. Members may be separated for personality disorders provided:

a. Medical diagnosis is made by a competent military medical authority which concludes that the member's disorder is of such severity as to render member incapable of serving adequately in the naval service. For purpose of this article, military medical authority is defined as a medical officer specializing in psychiatry or a clinical psychologist. The information and any recommendation made by the military medical authority are for command use in determining the proper course of action; however, it must not be construed as the total justification for immediate processing for separation.

b. There is documented evidence that the diagnosis of personality disorder interferes with performance of duty. Evidence such as reduction in performance marks, minor disciplinary infractions, work disruptions, etc., which persist in spite of a reasonable attempt by the command in correcting deficiencies through leadership, non-medical counseling and, when appropriate, disciplinary action would be supportive as documented interference with performance of duty.
        
c. Documented interference must be part of the commanding officer's endorsement, as mere presence of a personality disorder is not a bar to naval service. The commanding officer's concurrence with medical evaluation for discharge shall cite specific examples of how the diagnosed disorder interferes with the performance of member's duty.

d. Counseling has been initiated whereby member has been advised of his or her deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected on an appropriate Page 13 service record entry (NAVPERS 1070/613, Administrative Remarks). Member should not be separated unless there have been documented efforts at rehabilitation. Such efforts must include the following and be documented in the member's service record:

(1) Written notification concerning deficiencies or impairments.

(2) Specific recommendations for corrective action, indicating any assistance available.

(3) Comprehensive explanation of the consequences of failure to undertake successfully the recommended corrective actions.

(4) Reasonable opportunity for the member to undertake the recommended corrective action.

EXCEPTION. As the only exception to the prescribed policy, the administrative counseling, done on the NAVPERS 1070/613, will not be required in those instances where the medical authority has evaluated a members as being self-destructive or a continuing danger to him or herself and others. In these cases, immediate processing for administrative separation may be initiated. This does not imply automatic approval of the discharge request, only expeditious consideration. When appropriate, the member may be transferred Temporary Additional Duty (TAD) to the nearest separation activity. Temporary Duty (TEMDU) transfer will not be authorized until complete documentation is presented indicating a need for transfer ashore and must be authorized by NMPC-242. The transferring activity should submit the discharge request prior to transfer of the individual. If this is not possible, the transferring activity is responsible for ensuring that the receiving command has all information necessary to make a comprehensive request.

5. Processing is commenced by use of the Notification Procedure, MILPERSMAN 3640200. Discharge requests requiring approval from the Commander, Naval Military Personnel Command, should be sent to Pers-282 for determination. Ensure cases approved by SPCMCA are sent to NMPC-242 with the required documentation.

6. Message requests for personality disorder separation should be reserved for unusual circumstances or for cases where there is immediate danger to the individual or to others. If the necessity arises to submit a message case, the complete psychiatric evaluation must be quoted verbatim.

7. Indicate in the commanding officer's comments if member is transferred or impending transfer from the processing command.

8. If separation processing is warranted on the basis of unsatisfactory performance or misconduct, the member shall not be processed under this section regardless of the existence of a personality disorder.

9. Characterization of service or description of separation shall be Honorable, General, or Entry Level Separation following guidance in MILPERSMAN 3610300.

F . The Naval Military Personnel Manual, (NAVPERS 15560A, 15 June 1987 until 14 Aug 91), Article 3630200, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ENTRY LEVEL PERFORMANCE CONDUCT , states:

1. Basis

a. A member may be separated for Entry Level Performance and conduct for the following reasons:

(1) A member may be separated while in entry level status when it is determined, considering the guidance in MILPERSMAN 3610200, that the member is unqualified for further naval service by reason of unsatisfactory performance and/or conduct as evidenced by incapability, lack of reasonable effort, failure to adapt to the naval environment, or minor disciplinary infractions.

(2) A member with broken service, i.e., a veteran with prior service in any military service who reenlists after a break of more than 92 days active service and is required to complete indoctrination training, may be separated for failure to satisfactorily complete such training.

b. When separation of a member in entry level status is warranted by unsatisfactory performance and/or minor disciplinary infractions or for failure to satisfactorily complete indoctrination training, the member normally should be separated under this article. However, nothing in this article precludes separation under another provision of this Manual.

2. Counseling and rehabilitation. Separation processing may not be initiated until the member has been counseled by his or her parent command concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling and personnel records. A member should not be separated for Entry Level Performance and Conduct unless there have been efforts at rehabilitation. Such efforts shall include the following and be documented in the member's service record by Page 13 entry (see enclosure 2, NAVMILPERSCOMINST 1910.1).

a. Written notification concerning deficiencies or impairments.

b. Specific recommendations for corrective action indicating any assistance available;

c. Comprehensive explanation of the consequences of failure to undertake successfully, the recommended corrective action; and

d. A reasonable opportunity for the member to undertake the recommended corrective action. However,      members with prior service who have successfully demonstrated appropriate military behavior and conformance to military regulations and customs as well as adherence to the UCMJ are considered to be aware of their military responsibilities. Accordingly, it is reasonable to require these members to readapt rapidly to appropriate naval behavior and, therefore, failure to rehabilitate themselves should be evident in a short period of time.

3. Characterization. Entry Level Separation (3610300)

4. Procedures

a. A commanding officer with the authority to convene a special courts-martial empowered to award punitive discharges has the authority to effect the separation of a member processed in accordance with the provisions of this article provided the member has received counseling concerning his or her deficiencies, all disciplinary action including punishments awarded for any pending offenses has been completed, and the member does not object to the separation.

b. The Notification Procedure (3640200) shall be used.

c. Request the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of the Notice of Notification Procedure Proposed Action. The member shall acknowledge the following modification in his or her statement of awareness: "I understand that I am being considered for an administrative discharge by reason of Entry Level Performance and Conduct. I have been advised that if the proposed separation is approved it will result in my separation from naval service with an uncharacterized discharge identified as Entry Level Separation."

d. Forward the processed case by letter of transmittal to COMNAVMILPERSCOM (NMPC-83). In those cases where the commanding officer effects the separation, indicate the date of the separation. Ensure member's full name, rate and SSN have been indicated on each page of the case. Refer to NAVMILPERSCOMINST 1910.1 for the message submission option in those cases where the commanding officer does not have authority to effect separation or member objects to separation.

G. Naval Military Personnel Manual, (NAVPERS 15560A, effective 15 Jun 87 until 14 Aug 91), Article 3610300, TYPES OF CHARACTERIZATION OF SERVICE AND DESCRIPTIONS OF SEPARATION AND GUIDANCE FOR ASSIGNMENT, states:

1. Types of characterization of service or descriptions of separation:

a. For administrative separations the following characterizations of service are authorized subject to the limitations specified in MILPERSMAN 3610200 and described with each reason for processing.

(1) Honorable

(2) General

(3) Other Than Honorable Conditions

b. For separations adjudged by Courts-Martial the following characterizations of discharge are used and shall not be used for administrative separations.

(1) Bad Conduct Discharge. Result of an approved sentence of a General or Special Courts-Martial.

(2) Dishonorable Discharge. Result of an approved sentence of a General Courts-Martial.

c. For administrative separations the following uncharacterized descriptions of separation are authorized subject to the limitations specified in MILPERSMAN 3610200.

(1) Entry Level Separation.

(2) Order of release from the custody and control of the Armed Forces.

2. General considerations on characterization of service:

a. Characterization of service at separation shall be based upon the quality of the member's service, including the reason for separation, subject to the limitations set forth under the specific reasons for separation. The quality of service shall be determined in accordance with standards of acceptable personal conduct and performance of duty for naval personnel. These standards are found in the UCMJ, directives and regulations issued by the Department of Defense and the Department of the Navy, the Enlisted Performance Evaluation System, and the timehonored customs and traditions of the naval service.

b. The quality of service of a member on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the naval service or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction. Characterization may be based on conduct in the civilian community where that conduct has adversely affected the respondent's service; once the Government has introduced evidence that such conduct did adversely affect the respondent's service, the burden is on the respondent to demonstrate that such conduct did not in fact adversely affect the respondent's naval service.

c. The reason for separation, and the specific circumstances that form the basis for the separation, as well as the military record, shall be considered on the issue of characterization. Generally, characterization will be based upon the member's performance of duty and conduct throughout the period of his or her enlistment. However, there are circumstances in which the conduct or performance of duty reflected by a single incident may provide the basis of characterization, such as single acts of misconduct or heroism. Due consideration shall be given to the member's age, length of service, grade, aptitude, physical and mental condition, and the standards of acceptable conduct and performance of duty.

3. Guidelines for Assignment of Characterization:

a. Honorable. The Honorable characterization is appropriate when the quality of the member's service has for the most part met acceptable standards of conduct and performance of duty for naval personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. The Honorable characterization is marked by proper personal and military behavior with proficient and industrious performance of duty having due regard to the rate held and the capability of the member concerned. If characterization higher than Other Than Honorable is being recommended in a drug abuse case where characterization of service as Other Than Honorable would normally be appropriate, it must be approved by Commander, Naval Military Personnel Command.

(1) During an enlistment, induction, or other service obligation the member must have been awarded in the enlisted performance evaluation a final average in performance and conduct marks of not less than 2.8 and an average of not less than 3.0 in personal behavior, in order to receive a characterization of separation of Honorable, except as otherwise provided in this Manual.

(2) A member who would be eligible for a characterization of service as General may receive an Honorable discharge if he or she has, during a current enlistment or other current period of service or prior service, been awarded a Medal of Honor, Navy Cross, Distinguished Service Medal, Silver Star Medal, Legion of Merit, Distinguished Flying Cross, Navy and Marine Corps Medal, Bronze Star Medal, Meritorious Service Medal, Air Medal, Joint Service Commendation Medal, Navy Commendation Medal, Navy Achievement Medal, Combat Action Ribbon, Gold Lifesaving Medal, Silver Lifesaving Medal, or an award corresponding to any of these personal decorations awarded by one of the Armed Forces. The above constitutes elements of a member's record which should be considered meritorious.

b. General. The general characterization is appropriate when service has been honest and faithful but significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's service record. A characterization of separation as General is under honorable conditions. A member would be eligible for a characterization of separation as General if, during an enlistment, induction, or other service obligation, the member's performance and conduct marks on the enlisted performance evaluation system, on a final average, fall below 2.8, or a trait average for personal behavior below 3.0, except as otherwise provided in this Manual. If characterization higher than Other Than Honorable is being recommended in a drug abuse case where characterization as Other Than Honorable would normally be appropriate, it must be approved by Commander Naval Military Personnel Command.

c. Other Than Honorable. A characterization of service as Other Than Honorable is appropriate and may be authorized in the following circumstances, and member has had the opportunity to elect an Administrative Board: (Administrative Board election not applicable if member requesting Other Than Honorable Discharge in lieu of trial by Court-Martial (3630650)).

(1) When the reason for separation is based upon a pattern of adverse behavior that constitutes a significant departure from the conduct expected from members of the naval service.

(2) When the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected from members of the naval service. Examples of factors that may be considered include the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States, the health and welfare of other members of the naval service, or the health and safety of other persons, drug abuse, felony convictions, and some instances of homosexual conduct.

(3) When the reason for separation is based on a pattern of misconduct if the offenses, or one of the offenses, is considered by the Commander, Naval Military Personnel Command, of such severity to warrant such action, e.g., a punitive discharge is authorized for the offense(s) and/or one offense being considered reflects unauthorized absence (UA) in excess of 30 consecutive days. Commanding officers must provide specific details of offenses in those cases which may warrant a more favorable characterization than that normally authorized.

4. Limitations on characterization of service

a. Except as otherwise noted in this article, characterization will be determined solely by the member's service record during the current enlistment or period of service to which the separation pertains, plus any extensions prescribed by law or regulation or effected with the consent of the member.

(1) Activities from prior enlistments or periods of obligated service, including records of conviction by courts-martial, records of absence without leave, or commission of other offenses for which punishment was not imposed shall not be considered on the issue of characterization. To the extent that such matters are considered on the issue of retention or separation, the record of proceedings shall reflect that such information was not considered on the issue of characterization.

(2) Pre-service activities may not be considered on the issue of characterization except that in a separation proceeding for the reason of Defective Enlistments and Inductions due to Fraudulent Entry into the Naval Service (3630100), evidence of pre-service misrepresentation or concealment in regard to any of the qualifications or disqualifications for enlistment or induction, e.g., evidence of homosexuality or drug abuse, may be considered on the issue of characterization.

b. The limitation in MILPERSMAN 3610200 on matters that may be considered on the issue of separation are also applicable to characterization of service.

c. When members are processed for separation by reason of misconduct (3630600 or 3630620) based solely upon the results of a courts-martial not imposing a punitive discharge (or the punitive discharge was suspended) and an other than honorable characterization is warranted, such characterization must be approved by the Secretary of the Navy on a case basis.

d. Conduct in the civilian community of a member of the Naval Reserve who is not on active duty or active duty for training may form the basis for characterization under Other Than Honorable Conditions only if such conduct affects directly the performance of the members military duties; e.g., conduct that results in incarceration, prohibiting a member from participation in drills or being mobilized, etc. Such conduct may form the basis of characterization as General under Honorable Conditions only if such conduct has an adverse impact on the overall effectiveness of the naval service including military morale and efficiency; e.g., discreditable involvement with civilian authorities while not on active duty for training and while wearing the naval uniform without authorization.

e. Disclosures made by a member to drug abuse screening, counseling, treatment, or rehabilitation personnel relating to the member's past drug use, or possession incident to such use, including disclosures made at Alcoholics Anonymous and Narcotics Anonymous meetings and while attending NASAP/NDSAP classes, are privileged and may not be used against the member in any disciplinary action under the UCMJ or as the basis for characterizing a discharge, provided that the information is disclosed by the member for the express purpose of seeking or obtaining treatment or rehabilitation. This privilege does not preclude the introduction of evidence for impeachment or rebuttal purposes in any proceeding in which drug abuse (or lack thereof) has first been introduced by the member. See enclosure (5) of OPNAVINST 5350.4 for further guidance.

f. Urinalysis test (fitness for duty) results may not be considered on the issue of characterization except as provided in OPNAVINST 5350.4.

5. Uncharacterized Separations. A separation which, due to the short duration of service, is uncharacterized.

a. Entry Level Separation

(1) A separation initiated while a member is in entry level status (first 180 days of continuous active duty) will be described as Entry Level Separation except in the following circumstances:

(a) When characterization under Other Than Honorable conditions is authorized under the reasons for separation and is warranted by the circumstances of the case; or

(b) When characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of naval duty where separation is for the reason of: Selected Changes in Service Obligation (MILPERSMAN 3620100), Convenience of the Government (MILPERSMAN 3620200), Disability (MILPERSMAN 3620270), or separation in the best interest of the service (MILPERSMAN 3630900), and the Secretary of the Navy approves such characterization on a case-by-case basis.

(2) With respect to administrative matters outside this Manual that require a characterization as Honorable or General under Honorable Conditions, an Entry Level Separation shall be treated as the required characterization. When a member of the Naval Reserve is separated from the Delayed Entry Program with an Entry Level Separation, such separation is treated as under honorable conditions.

b. Void enlistment or induction

(1) An enlistment is Void in the following circumstances:

(a) If it was effected without the voluntary consent of a person who has the capacity to understand the significance of enlisting in the Navy including enlistment of a person who is intoxicated or insane at the time of enlistment, or enlistment of a person who was coerced into enlisting by being presented with the option of either enlisting or being subjected to a sentence to confinement by a court of competent jurisdiction.

(b) If the person is under 17 years of age.

(c) If the person is a deserter from another Military Service.

(2) A member whose enlistment or induction is void shall not receive a discharge certificate, characterization of service at separation, or an Entry Level Separation. The separation shall be described as an order of release from custody or control of the Armed Forces.

(3) Although an enlistment may be void at its inception, a constructive enlistment arises in the case of a person serving with the Navy who:

(a) Submitted voluntarily to Naval authority and was not insane, intoxicated or under 17 years of age at the time;

(b) Received military pay or allowances; and

(c) Performed military duties.

(4) If a constructive enlistment arises from a void enlistment within the same term of service, characterization of service or description of separation shall be in accordance with paragraph 3 or paragraph 5a of this article as appropriate. However, if the enlistment was void by reason of desertion from another service, the member shall be separated by an order of release from custody and control of the Armed Forces, regardless of any subsequent constructive enlistment, unless the Secretary of the Navy determines that retention is appropriate.

(5) The occurrence of such a constructive enlistment does not preclude the Navy, in an appropriate case, from either retaining or separating the member on the basis of the circumstances that occasioned the original void enlistment or upon any other basis for separation provided in this Manual.

H. Naval Military Personnel Manual, (NAVPERS 15560A, Change 10, effective 22 Mar 90 until 14 Aug 91), Article 3630900, SEPARATION IN THE BEST INTEREST OF THE SERVICE, states:

1. Basis. Regardless of any limitation on separations published in this Manual, the Secretary of the Navy may in his discretion, direct the separation of any member prior to the expiration of a term of service.

a. In those cases where no other reason for separation set forth in this Manual is appropriate, but where separation of a member is considered to be in the best interest of the Service, separation processing may be initiated in the best interest of the Naval Service.

b. In those cases initiated under another reason for separation, the Secretary may in his discretion, direct separation for that other reason. Separation authorities recommending this action must provide specific supporting rationale.

2. Characterization. Honorable or General by guidance provided in MILPERSMAN 3610300, except when an Entry Level Separation is appropriate.

3.       Procedures

a. The Notification Procedure (MILPERSMAN 3640200) shall be used. In addition the notice shall:

(1)      Explain why separation of the member is in the best interests of the Naval Service; and

(2)      State that no other reason for separation in this Manual is considered appropriate and why.

b. When separation is for this reason, the right of a member with 6 or more years of total active and reserve Naval service to request an Administrative Board is not applicable.

c. Request the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of the Notification Procedure.

d. Forward processed case by letter of transmittal to Commander, Naval Military Personnel Command (NMPC-83). Ensure member’s full name, rate, and SSN have been indicated on each page of the case.

PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, facts, and circumstances unique to this case, the Board determined that the characterization of the applicant’s service is equitable, but the reason for discharge is improper (A and B, Part IV). The discharge shall be changed to : ENTRY LEVEL SEPARATION/SECRETARIAL PLENARY AUTHORITY; authority: NAVMILPERSMAN, Article 3630900.
The applicant’s records are incomplete, and some factors on which his discharge was based were not available. Specifically, the applicant’s Letter of Notification. The applicant failed to submit substantial creditable evidence to rebut the presumption of regularity, therefore, the Board presumed regularity in the conduct of governmental affairs (C, Part IV).

 The applicant was discharged on 910716. He was separated by reason of entry level performance and conduct due to his failure to adapt to the naval environment as evidenced by a diagnosis of an adjustment disorder (D and E, Part IV). On 910703, the applicant was diagnosed with an adjustment disorder and a personality disorder. After this diagnosis, the commanding officer (CO) initiated administrative discharge separation proceedings. On 910705, t he applicant was notified of the intended recommendation for separation, he was afforded the opportunity to exercise all of the rights of law, custom, and regulation to which he was entitled. He chose not to consult with counsel, then elected to waive all rights, except the right to obtain copies of documents forwarded to support the separation. The CO, as a SPCMCA, directed the separation with a characterization of entry level separation (ELS) by reason of a clinical psychologist diagnosis of an adjustment disorder.
The applicant was in an entry level status (F and G, Part IV), as such, his separation is properly and equitably reflected as an ELS, no other characterization better defines the applicant’s service. A separation initiated while a member is in entry level status (first 180 days of continuous active duty) will be described as an ELS except in the following circumstances: when characterization under Other Than Honorable conditions is authorized under the reasons for separation and is warranted by the circumstances of the case; or when characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of naval duty where separation is for the reason of: Selected Changes in Service Obligation, Convenience of the Government, Disability, or separation in the best interest of the service, and the Secretary of the Navy approves such characterization on a case-by-case basis. The Board found no extenuating circumstances in the applicant’s service record that would warrant a characterization change.
         The Board found an inequity with the reason for separation. An adjustment disorder or a personality disorder in of themselves are not reasons on which a separation may based. Documented interference, of the disorders, must provide specific examples of how the diagnosed disorder is interfering with the applicant’s performance or how the disorder poses a threat to his safety and well-being to himself or others. If the disorder is not an immediate threat, he must then be counseled and given a chance to rehabilitate. A member should not be separated unless there have been documented efforts at rehabilitation. In this case, the applicant was diagnosed with an adjustment disorder and a personality disorder (existed prior to entry into the Naval Service), he was never diagnosed as a threat to himself or others and he was never counseled or given a chance to rehabilitate, as required by regulation (D - G, Part IV). In view of this inequity, the most proper basis for separation is secretarial plenary authority (H, Part IV) . Under that authority, the Secretary of the Navy may direct the separation of any member prior to the expiration of a term of service. Characterization of service may be honorable, general, or ELS when appropriate and in accordance with the service record. As discussed above, the applicant’s service record does not warrant characterization more favorable than ELS.
In the applicant’s first and third issues, he states “I have passed the exact test (MMPI 2) in the civilian world as given to me while in service. I am more sure of myself now than I was when I was 18. I was very young when I enlisted and was not mentally prepared for military life.” and “Considering I was only 18 and out of high-school 4 days prior to enlisting I believe I deserve a chance at a profession, and do not want a mistake made 6 years ago to keep me from that.” The Board, upon review, found no merit in this claim. His age, entrance examination test scores and education level qualified him for enlistment. He entered the Navy at an age when individuals are generally assumed to be mature enough to handle their own affairs and be responsible for their actions. The record of service is devoid of evidence to suggest that the applicant should not be held accountable for his behavior. The applicant has submitted no evidence that he was any less mature than many of his peers who went on to serve honorably. No relief is warranted.
         In the applicant’s second issue, he states “I have completed 27 college credits which takes a great deal of mental & physical strength. If I knew then what I know now I would have been better off.” The NDRB commends the applicant for his achievements, and interprets this issue as a request for clemency due to post-service conduct. The following information is provided for the applicant’s edification. In addition to the service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). Although the Board is authorized to take post-service factors into consideration in order to upgrade discharges; the applicant’s short amount of time on active duty, lack of performance evaluation, and initial reason for separation does not provide sufficient background or provide a basis on which the Board can interpret and then characterize his service. The Board did not consider this a clemency issue, as a characterization of ELS is not considered an adverse separation. As stated earlier the applicant’s service is properly and equitably reflected as an ELS.

Recorder’s NoteS:

 1 In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Documents listed on the back of the DD Form 293 were not attached.
Copy of the applicant’s DD-214.

PART VI - INFORMATION FOR THE APPLICANT
Decision

The NDRB discerned no inequity in the characterization of the applicant’s service, but did find an impropriety and inequity with the reason for separation. The Board’s vote was unanimous that the character of the discharge shall not change, but the reason for discharge shall be changed to secretarial plenary authority. The discharge shall change to: ENTRY LEVEL SEPARATION/SECRETARIAL PLENARY AUTHORITY; authority: NAVMILPERSMAN, Article 3630900.
 ________________________________________________________________________

 If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809.

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

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Building 36 Washington Navy Yard
                  901 M Street, SE
                  Washington, D.C. 20374-5023.

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