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NAVY | DRB | 2002_Navy | ND02-00483

Original file (ND02-00483.rtf) Auto-classification: Denied

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

ex-SA, USN
Docket No. ND02-00483

Applicant’s Request

The application for discharge review, received 020305, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to MEDICAL RETIREMENT. The Applicant requested a personal appearance discharge review before a traveling panel closest to Los Angeles, CA. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, she was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214. 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 character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS/PERSONALITY DISORDER, authority: NAVMILPERSMAN, Article 1910-122 (formerly 3620225).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Discharge should be upgraded to a medical retirement under Honorable conditions based on the VARO original rating decision which granted 50 % for depressive disorder as a result of trauma in service, which was then upgraded to a 100% evaluation to include PTSD as a result of the trauma suffered in service.

Upgrade discharge to medical retirement under honorable conditions based on the letters from the physicians which denoted her problems are not a personality disorder but major depression with PTSD as a result of trauma suffered in service. In addition her Axis I diagnosis on the discharge summary from service shows she has a depressive disorder and the personality disorder was secondary.

THEREFORE in the interest of justice her discharge should reflect the appropriate diagnosis of depressive disorder as a result of trauma in service, which would have resulted in a medical discharge under honorable conditions.

2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 149 Application for the Correction Of Military Records and all of the evidence assembled for review, we continue to note the contention of the appellant in the request for a discharge upgrade reflecting entitlement to medical retirement, due to permanent disability, characterized as Honorable.

The record reflects that the FSM served in the United States Navy from November 29, 1999 to December 13, 2000 till she was discharged from active service with a General Discharge, with the Narrative Reason For Separation as Personality Disorder. The Department of Veterans Affairs, currently rates the condition (Major Depressive Disorder) since the day after the date of the FSM's discharge, at a fifty percent.

The record reflects the FSM's enlistment was negative for any psychiatric complaints or abnormalities. In September 2000, the FSM was admitted to the psychiatric unit for suicidal ideation, and later diagnosed with depressive disorder, not otherwise specified. In October 2000, the FSM admitted to a consensual sexual relation with her married career counselor, which she alleged turned physically and emotionally abusive. An Administrative Separation was recommended. This brings the question, why an Administrative Separation? Why wasn't the FSM referred to counseling and a Physical Evaluation Board? This would have been the proper course of action, but it appears the Command chose to blame and punish the FSM, instead of taking a more positive and proper course of action.

During a re-evaluation in November 2000, the FSM retained the diagnosis of depressive disorder, not otherwise specified and a global assessment functioning score of between 51 and 60. At discharge, diagnoses of both a depressive disorder and a personality disorder were furnished.

Based on a review of the service records and the findings of VA examination dated June 23, 2001, the Department of Veterans Affairs (DVA) granted service connection for major depressive disorder at fifty percent, one day after the date of discharge from service. Due to findings that the depressive disorder was not only diagnosed in service but was caused by a failed relationship in service.

After a re-evaluation of the medical and service evidence the DVA determined on October 1, 2001 that the FSM was one hundred percent disabled due to major depressive disorder Post Traumatic Stress Disorder due to sexual trauma from active service.

Although we understand the Department of Defense (DOD) and the Department of Veteran's Affairs (DVA) use the same schedule for disability rating, their philosophy and application are completely different. Furthermore we believe there are improprieties contained within this record. In the form of the improper conduct of her counselor, who was a superior and should have known better than to conduct inappropriate relations with a lower enlisted member. Secondly, the inappropriate action to choose to discharge the FSM with a personality disorder, instead of following procedure and referring the case to the Physical Evaluation Board (PEB) for their review, and possible disability discharge, either temporary, or permanent disability retirement (PDRL).

These evaluations not only reflect a true disability picture at the time of discharge, but also show that there is a dire need for training by the Department of the Navy, so there can be a proper interpretation of the Disability Schedule by the officers that maintain the Naval disability evaluation system.

We understand the local agencies zeal to protect the interest of the government, but believe the statues are explicit with regard to this matter, and as such, the Board is not free to substitute it's own judgment as to whether or not a particular condition will be considered, especially, when there is clear and convincing evidence of record supporting the finding of PDRL.

Because of the importance of retirement benefits, we believe the Board should exercise extreme caution in all aspects of this review, to ensure that this administrative proceeding avoid arbitrary action, and also the appearance of arbitrary action as well and observe the requirements established by law and implementation by regulation. See, Harris v. United Sates, 177 Ct. Cl 538, 549-50 (1996).

We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision, awarding at a minimum of a fifty percent evaluation for the depressive disorder, based on the clinical evidence of record and the Schedule for Rating Disabilities as contained in Part Four of the 38 Code of Federal Regulations, requiring placement of the FSM on the PDRL, and a correction of the record to reflect an Honorable Discharge. These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,

Documentation

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

Letter from Disabled American Veterans to Applicant, dated February 6, 2003
Applicant's DD Form 214
Letter from Applicant's physician, dated October 5, 2001 (2 pages)
Letter from Department of Veterans Affairs, dated July 3, 2001 (14 pages)
Department of Veterans Affairs Decision of Applicant's Notice of Disagreement, dated October 12, 2001

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     991029 - 991128 COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 991129               Date of Discharge: 001213

Length of Service (years, months, days):

         Active: 01 00 15
         Inactive: None

Age at Entry: 28                          Years Contracted: 4

Education Level: 12                        AFQT: 43

Highest Rate: SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NMF                  Behavior: NMF             OTA: NMF

Military Decorations: None

Unit/Campaign/Service Awards: AFEM, SSDR

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority: NAVMILPERSMAN, Article 1910-122 (formerly 3620225).

Chronological Listing of Significant Service Events :

000327   Applicant reported for duty aboard USS PEARL HARBOR (LSD 52).

000416   Medical Department entry USS PEARL HARBOR: 28 year old Asian female escorted to medical from Pilot House by duty corpsman - complained of “sweating” and dizziness while standing Helmsman UI watch. Patient (Applicant) reports that she became “nervous’ with all the activity going on in the Pilot House & being on the Helm…Vasovagal episode; likely stress induced.

000920: Medical Record Admin Note: Patient admitted to Naval Medical Center San Diego Psychiatric Unit for suicidal ideation. Psychiatry recommended administrative separation and transfer to TPU until then.

000929: Medical Record Admin Note: Patient discharged from Naval Medical Center San Diego Psychiatric Unit.
         Diagnostic Assessment:
Axis I: Depressive Disorder NOS
         Axis II: Personality Disorder NOS, Avoidant/Dependent
         Axis III: None
         Axis IV: Occupational Problem, & Decreased Social Rapport.

001019: Medical Record entry from Social Worker: Asked to evaluate patient (Applicant) by DAPA, TPU & SAVI representatives…- they are all concerned that this 29 year old female AD SR assigned to USS PEARL HARBOR is being given an administrative separation with diagnoses of Depression & PD NOS (with avoidant/dependent features). At time of evaluation (in September) patient was an in-patient in psychiatry for suicide ideation - she was in an abusive (physical & sexual) relationship with E-6 Career Counselor on same ship. "He helped me a lot when I first got to the ship" - but when he wanted a sexual relationship & she did not he was abusive - patient felt cornered with no way out - "He played with my mind." Patient wants to stay in USN to "accomplish my goal" - She wants to go to college after her four years. At present patient in process of exit physical before administrative separation - I will contact ship to ask for reconsideration - E-6 is presently being investigated.

001025: Medical Record entry from Social Worker: I visited ship Medical Officer to ask him to intercede with administrative separation process - stated it was generated by Dr. M_ while patient (Applicant) an in-patient and he (Dr. M_) would need to intervene in process - stated command is not force behind separation at this point. I will discuss situation with Dr. N_ to see what can be done at this point. Her (Applicant’s) SAVI Advocate is intervening to get her out of TPU & into a more conducive TAD until this can be resolved. Would also like to see her out of Deck due to treatment females notoriously receive there by male peers.

001026   NCIS Report indicated Applicant reported her ship’s career counselor (E-6) physically abused her, during sexual intercourse in a hotel room in San Francisco in September 2000. Applicant admitted she had been having a consensual relationship with the career counselor.
         [Extracted from documentation provided by the Applicant]

001101: Medical Record entry from Social Worker: Called Dr. M_ (at encouragement of Dr. N_) to see if he could evaluate patient for different recommendation at this point in patient’s (Applicant’s) treatment - She does not want to get out of USN.

001109: Fleet Mental Health Unit, Branch Medical Clinic, Naval Station San Diego, Diagnostic Re-evaluation: Chief Complaint: Patient’s (Applicant’s) therapist, J_ E_, (social worker) requested re-evaluation of diagnoses and recommendation for administrative separation.
Diagnostic Assessment:
Axis I: Depressive Disorder not otherwise specified
Axis II: Personality Disorder not otherwise specified with dependent and avoidant features
Axis III: No diagnosis
Axis IV: Occupational problems; problems with primary support group Axis V (current): 51-60 Moderate symptoms or difficulty in functioning. Axis V (highest past year): 61-70 Some mild symptoms or difficulty in functioning.
History of Present Illness : The historical information is felt to be reliable. Sources of such data include the patient’s (Applicant’s) report as well as her medical record…On 9/16/00 the patient (Applicant) was admitted to NMCSD 1-West locked psychiatric ward for suicidal ideation. Reportedly on the eve of the admission she voiced to her command suicidal ideation with a plan to jump off the ship in the context of multiple stressors in the Navy. The patient states that upon reporting that she had a very difficult time adjusting to the ship work environment, including difficulties being assertive, understanding the rules and regulations, etc. She stated that peer and superiors picked on her and made fun of her because she was not as assertive as they were. She describes herself as “very shy” and says she finds it difficult to talk to people, even to the point of letting other people take advantage of her. The patient (Applicant) reported that she was depressed for approximately 5 months prior to her admission, which included depressed mood, crying spells, variable sleep, and somatic complaints when in the work environment (dizzy spells or some mild epigastic pain). Additionally, upon arriving on the ship she (Applicant) met her career counselor, who was an E-6. This work relationship developed into an inappropriate relationship and resulted in this E-6 allegedly raping and physically assaulting the patient (Applicant). She reports she was extremely uncomfortable with the inappropriate relationship but was scared to tell anyone, and did not do so for several months. It was not until the day before her psychiatric admission did the chain of command find out about the inappropriate relationship. An NCIS investigation was done, which resulted in Captain’s Mast against the E-6, at which the patient (Applicant) chose to testify. Reportedly the E-6 was charged for physical abuse, but could not be charged with the sexual abuse due to lack of evidence and length of time between the crime and reporting. Her command reports her as being very quiet with the lowest evaluation in the division. According to the patient (Applicant) she thinks many people in her command have sided with her abuser and not with her, and feels she cannot go back to that ship. Since being discharged from the psychiatric unit the patient (Applicant) has been staying at TPU awaiting administrative separation. Apparently her ship has been holding off on the separation until the NCIS investigation and mast were complete against her perpetrator. She has been attending counseling sessions with J_ E_, a social worker at NMCSD, and attending the Transition group at FMHU. Ms. E_ and the patient report a little improvement in the patient’s mood and assertiveness in the last two months.”
Recommendations: Changes in diagnosis or recommendations are not warranted at this time. As previously recommended, Administrative separation strongly recommended. The member (Applicant) is not considered mentally ill but does manifest a longstanding disorder of character and behavior which is of such severity as to interfere with serving adequately in the military. Expeditious administrative separation in accordance with MILPERSMAN 1910-122 is strongly recommended. Due to the longstanding nature of this member’s disorder of character and behavior it is highly unlikely she will adequately benefit from a period of Limited Duty or from continued psychotherapy. The prognosis for significant change in this service member’s (Applicant’s) behavior is, as with most personality disorders, considered poor. Patient (Applicant) to continue to attend Transition group at FMHU until discharge from USN. The patient (Applicant) was informed of the contents of this report.

001212   Report of Medical Examination: On the member’s (Applicant’s) SF 88/93 she stated she was in “good health” and on no medications. On the checklist section of the physical, the only psychiatric item she checked was “yes” to “suicide attempts or plans.” She checked “no” to: a) frequent trouble sleeping; b) depression or excessive worry and “nervous trouble of any sort.”

001213   CO’s NJP held this date. No further information available. Discharge Package missing from Official Record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001213 with a discharge characterization of general (under honorable conditions) for convenience of the government on the basis of a diagnosed personality disorder of such severity as to render the Applicant incapable of serving adequately in the naval service. (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: In accordance with regulations, the Board has no authority to change the reason for discharge from or to a physical disability or effect a retirement (B). Therefore, relief cannot be granted on this issue. The Applicant should submit her claim for a Medical Retirement to the Board for Correction of Naval Records (BCNR).

The Veteran’s Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based on the Applicant’s subsequent award of VA compensation. In the Applicant’s case, the Board could discern no inequity in the characterization of her service. The award of non-judicial punishment (NJP) mars the Applicant’s service record. Award of non-judicial punishment during an enlistment warrants a characterization of service of general (under honorable conditions). The Board does not consider the circumstances surrounding the Applicant’s stated condition and implied incorrect diagnoses to be of sufficient nature to warrant an upgrade to her characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

With regard to the Reason for Separation, there is no indication in the official record that the Applicant was UNFIT, in terms of the DOD Disability Evaluation System. However, it was determined that the Applicant was unsuitable for further naval service. Competent medical authority diagnosed the Applicant as having a Depressive Disorder NOS and a Personality Disorder NOS with dependent and avoidant features. The Applicant’s treatment consisted of numerous counseling sessions - there is no record of the Applicant receiving any medication or specific treatment for depression.

A Personality Disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture, is pervasive and inflexible, has an onset in adolescence and early adulthood, is stable over time, and leads to distress or impairment. The Applicant enlisted in the Navy as a 28 year old woman who had never lived away from her family or held down a full or part-time job for any significant period of time. The following is extracted from the Applicant’s medical record: “Patient (Applicant) self reports long history of being shy and having difficulties with assertiveness. She stated that her family has always taken care of her, specifically her mother…The patient (Applicant) reports that from age 17 to 19 she stayed at home, did not work, and ‘hung out with friends.’ From age 19 to 22 she lived in Hong Kong working for her uncle in a packing business. From age 22-25 she went to a 2-year college and worked part time. From age 25 to 28 the patient (Applicant) again stayed at home, did not work and ‘hung out with friends.’ Prior to joining the Navy, she had a Chinese boyfriend for two years and when he wanted to get married, she declined…”

Service members may be processed for separation based on a clinical diagnosis of a Personality Disorder when the disorder is so severe that the member's ability to function effectively in the naval environment is significantly impaired, and the impairment interferes with the member's performance of duty, or poses a threat to the safety or well-being of the member. Thus, the Boards finds that the Reason for Discharge accurately reflects the Applicant’s mental health status at the time of discharge. The contention that the Applicant does not have a Personality Disorder does not provide a legitimate basis to change her official records. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective
20 May 99 until 26 March 2000, Article 1910-122 (formerly 3620225), Separation By Reason of Convenience of the Government - Personality Disorder(s)

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 “ afls14.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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NAVY | DRB | 2002_Navy | ND02-00483

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