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NAVY | DRB | 2002_Navy | ND02-00003
Original file (ND02-00003.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00003

Applicant’s Request
The application for discharge review, received 010924, requested that the reason for the discharge be changed. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020517. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the reason for discharge shall not change. The discharge shall remain: UNCHARACTERIZED/ ENTRY PERFORMANCE AND CONDUCT, authority: NAVMILPERSMAN, Article 3630200.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because the reason listed was "ENTRY LEVEL PERFORMANCE/CONDUCT" The applicant's behavior, attitude and conduct were always, according to his Company Commanders, very good. The applicant was never disrespectful, or insubordinate, nor did he ever disobey a direct order (see attached letter dated 18 April, 2000). The applicant's company commanders even described him as "motivated to serve".

2. My discharge was inequitable because the applicant was misled to believe that he would be able to re enlist after six months, if he applied for and was granted a waiver. The applicant waited five years before even considering re enlisting to be sure the conditions that initially led to the Entry Level Separation no longer existed and that it was what he truly desired. He was only then informed that he was/is ineligible to re enlist.

3. My discharge was inequitable because the process of Entry Level Separation was described to the applicant as equivalent to never enlisting in the first place, the implication being that it wouldn't impair the possibility of future service. It was actually stated explicitly that the applicant would be able to re enlist in the future. This is really an extension of the preceeding issue.

4. My discharge was inequitable because it rendered the applicant unjustifiably ineligible to enlist in any branch of the armed forces, not just the Navy.

5. Please refer to attached letter dated 18 April 2000 and 15 September 2001 for additional details.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     930216 - 930307  COG

 Period of Service Under Review :
Date of Enlistment: 930308               Date of Discharge: 930326

 Length of Service (years, months, days):

         Active: 00 00 19
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 84

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED/ENTRY LEVEL PERFORMANCE AND CONDUCT; authority: NAVMILPERSMAN, Article 3630200.

 Chronological Listing of Significant Service Events :

Undated:         You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided to the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings. Speeding 8/91 Zeeland, MI. Written warning.         

930318:  Psychiatric evaluation indicates applicant was referred by RMC for evaluation of fitness for duty after the patient admitted to past suicide attempts at age 13.
         Diagnosis: Axis I: Adjustment Disorder with Depressed Mood
                  Axis II: None, but with Avoidant Personality Traits
         Axis: None noted.
930319:  Retention Warning: Applicant advised of deficiency in conduct evidenced by violation of UCMJ, Navy Rules and Regulations, Demotivated, Negative Attitude, Improper Conduct/Behavior, Adjustment Disorder with Depressed Mood/Negative Attitude toward training, does not want to continue training. Corrective actions identified. Sources of assistance included. Advised: further deficiencies may result in disciplinary action and administrative separation. All deficiencies during current enlistment will be considered. Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in separation under other than honorable conditions. Receipt acknowledged.

930322:  Applicant found in violation of counseling warning as indicated by his refusal to train.

930322:  Applicant notified of intended recommendation for discharge by reason of entry level performance and/or conduct as evidenced by your adjustment disorder. Advised least favorable characterization of service would be entry level performance.

930322:  Applicant advised of his rights and having elected 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.
930323:  Commanding officer directed an uncharacterized discharge by reason of entry level performance and conduct as evidenced by subject member's adjustment disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930326 with an uncharacterized service by reason of entry level performance and conduct (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 Issue 1. The applicant’s discharge is appropriately characterized as Entry Level Separation because he served less than 180 consecutive days on active duty. His service was unremarkable and an uncharacterized discharge is appropriate. Relief is denied.

Issue 2 states that the applicant’s discharge was inequitable because he was led to believe he could re-enlist after six months. The Board found this issue without merit. There are no regulations that provide for an automatic discharge upgrade six months after being separated from military service. The record shows the applicant was unfit for military duty as demonstrated by his documented personality disorder and refusal to train. The Board found no inequity in this discharge. Relief is denied.

Issues 3 and 4 state that the applicant was told he could re-enlist, the Entry Level Separation (ELS) was the equivalent to never enlisting in the first place and the discharge makes further service in any branch impossible. The applicant provided no documentation to support this claim that he could re-enlist. The Entry Level Separation is appropriate when a service member is on active duty less than 180 days. The applicant served 19 days of his enlistment. The ELS discharge characterization is a neutral characterization and does not prevent the applicant from re-enlisting. The re-enlistment code of RE-4 restricts his ability to re-enlist. The NDRB has no authority to change re-enlistment codes. The applicant will have to petition the Board of Corrections of Naval Records (BCNR) to have his re-enlistment code changed. The Board found no inequity in the discharge. Relief is denied.

Issue 5. The applicant restates the issues listed above in two personal letters written to the NCPB. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. The applicant’s discharge characterization will not change because of the length of his active duty service (19 days). He may petition BCNR to change his reenlistment code or request a waiver from Navy Recruiting Command, who is in charge of the enlistment and reenlistment. Relief is denied.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 2 Oct 96, Article 3630200, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ENTRY LEVEL PERFORMANCE CONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.jag.af.mil ".

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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