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NAVY | DRB | 2002_Navy | ND02-00758
Original file (ND02-00758.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00758

Applicant’s Request
The application for discharge review, received 020506, requested that the reason for the discharge be changed to Best Interest of Service (Secretarial Authority) and that a recommendation be made to the Board for Correction of Naval Records (BCNR) to change the reenlistment code to RE-1. The Applicant requested a personal appearance hearing discharge review in the Washington National Capital region. The Applicant designated a civilian counsel as his representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131. 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: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. The second discharge for Seaman Apprentice B_ (Applicant) (hereinafter SA B_) dated 5 Dec 2000 was improper and inequitable because through administrative and procedural errors on the part of members of the Recruit Training Command, and through no fault on SA B_ (Applicant)'s part, he was denied a fair opportunity to continue his Navy enlistment by being unjustly discharged. Specifically, the command discharged SA B_ (Applicant) on 24 August 2000, erroneously thinking that SA B_ (Applicant) had absented himself from the command, when in reality SA B_ (Applicant) was successfully participating in recruit training and the command had simply lost track of him. This first discharge created administrative obstacles that caused SA B_ (Applicant) not to receive pay, caused his records to be lost, caused him not to receive orders, and otherwise created an intolerable situation for SA B_ (Applicant) that ultimately resulted in the command discharging him a second time for a reason that was improper and inequitable under these circumstances.

2. SA B_ (Applicant)'s discharges of 24 Aug 2000 and 5 Dec 2000 were improper because of the error of fact that SA B_ (Applicant) did not suffer from the emotional disorders that formed the basis for these discharges. Specifically, SA B_ (Applicant) was diagnosed with Oppositional Defiant Disorder and Depressive Disorder that supported the reason for an "erroneous entry" discharge. SA B_ (Applicant) did not suffer from these disorders and therefore he should not have been discharged for this reason. Alternatively, even if he did suffer from one of those disorders, the severity was not sufficient under the regulations than existing or today's regulations to justify his discharge.

3. SA B_ (Applicant)'s second discharge of 5 Dec 2000 was improper because he had already been lawfully discharged by constructive and actual delivery of an administrative discharge separating him effective 24 Aug 2000. Once discharged, he would have to reenlist to be discharged again. It was this fact that caused the administrative nightmare that ultimately followed. This issue is raised to highlight the administrative mistakes that were made in this case, not to reissue the first discharge given to SA B_ (Applicant).

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
DD Form 214 (Copies 1 and 4) for period 00JUL31 - 00AUG24
G_ L_, Attorney at Law, Brief in Support of Application dtd 3 May 2002 (9 pages)
Enlistment Contract and Supplemental Documents (9 pages)
Applicant's Declaration (4 pages)
CO, RTC ltr 1910 Ser 10/L4338 of 11 Aug 2000 w/encls (5 pages)
CO, RTC ltr 1910 Ser 10/L4338 of 11 Aug 2000 to Applicant's mother
Declaration of NC1(SW) B_ L. P_, USN
Declaration of SK1 D_ A. I_, USN
Declaration of M_ B_ (Mother) w/attached emails (4 pages)
Congressman T_ R_'s Case Information form of 16 Nov 2000
CO, RTC ltr 1910 Ser 10/L6788 of 29 Nov 2000 w/encls (7 pages)
DD Form 214 (Copies 1 and 4) for period 00JUL31 - 00DEC05
RTC emails obtained pursuant to FOIA request
Dr. D_ S_'s Psychological Evaluation of Applicant dtd 21 Feb 2002 (2 pages)
G_ L_, Attorney at Law, ltr to Applicant of 5 Feb 2002 w/encls
DSM-IV-TR diagnosis criteria (8 pages)
MILPERSMAN Extracts (5 pages)
NAVMED P-117 Extracts (3 paes)
 Huang v. Secretary of the Army 23 F. Supp.2d 1377 (D. Ga. 1998) (7 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000616 - 000730  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000731               Date of Discharge: 001205

 Length of Service (years, months, days):

         Active: 00 04 05 (Does not exclude lost time.)
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 13                        AFQT: 51

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 10

*No Marks Found in service record.

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

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

 Chronological Listing of Significant Service Events :
000808:  Recruit Mental Health (Administrative Separation Recommendation (Oppositional Defiant Disorder) evaluation: Applicant denied prior psychiatric treatment and denied a psychotropic medication history. Applicant's father very distant, history of underage drinking, reckless driving, school problems - daily tardiness, truancy 3 times a week, detentions once a month, fighting, 5 different jobs - left all after problems relative to employers. Went to college 1 year than dropped out.
Assessment confirms the following psychiatric diagnosis:
AXIS I: Oppositional Defiant disorder, 313.81, EPTE
AXIS II: No diagnosis on AXIS II, V71.09
Plan & Recommendation: 1. Entry level separation due to disqualifying psychiatric condition affecting potential for performance of expect duties and responsibilities while on active duty. 2. Recruit was educated regarding his condition and encouraged to seek treatment following separation. Recruit suitable to report to Separations Division.
000810:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible as General Under Honorable Condition by reason of defective enlistment and induction due to erroneous enlistment as evidenced by oppositional defiant disorder.

000810:  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 .

000811:  Commanding Officer, RTC Great Lakes, directed Applicant's discharge with an uncharacterized service (entry level separation) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by an oppositional defiant disorder. Commanding Officers comments (verbatim): [As evidenced by the listed enclosures, an erroneous enlistment has occurred. I authorize separation from the naval service with an Entry Level Separation. Reentry code: Not Eligible (RE-4).]
000824:  Applicant discharged in absentia. Discharge documents mailed home to Applicant at parent’s address.
000925:  Applicant counseled on Navy Policy as described in BUPERS N132 Msg 072225ZJUL99 for all RTC graduates who will incur 4 weeks or more "A1" time between RTC and follow on "A" school facility. Acknowledged he would be made available to the fleet for training in his prospective rating with a guaranteed "A" school return date.

001018   Applicant successfully graduated from Recruit Training.
         [Note: Information obtained from Applicants Documentation]

001030   Recruit Evaluation Unit Triage Note: Applicant seen this date and instructed to report back on the following day for further evaluation. Note signed by a Medical Service Corps Officer from the Mental Health Staff as well as a staff psychiatrist.

001110:  Commenced unauthorized absence as of 0700 this date.

001120:  Applicant surrendered onboard NAVCRUITRACOM Great Lakes, IL as of 1225 this date.

001121:  Recruit Mental Health (Administrative Separation Recommendation (Oppositional Defiant Disorder) evaluation: Applicant revealed prior psychiatric treatment (family counseling a few times related to sister's trauma) and denied a psychotropic medication history. Applicant often loses temper, often argues with adults (parents, anyone in authority, teachers, principal), often actively defies or refuses to comply with adults' request or rules, often deliberately annoys people, often blames others for his mistakes or misbehavior, is often touchy or easily annoyed by others, is often angry and resentful is often spiteful or vindictive (would humiliate people or embarrass them). Recruit denied current suicidal and homicidal ideation. Recruit is a current low risk or harm
 Assessment confirms the following psychiatric diagnosis:
AXIS I: Oppositional Defiant disorder, 313.81, EPTE
AXIS II: No diagnosis on AXIS II, V71.09
Plan & Recommendation: 1. Entry level separation due to disqualifying psychiatric condition affecting potential for performance of expect duties and responsibilities while on active duty. 2. Recruit was educated regarding his condition and encouraged to seek treatment following separation. Recruit suitable to report to Separations Division.
001124:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible as General Under Honorable Condition by reason of defective enlistment and induction due to erroneous enlistment as evidenced by oppositional defiant disorder and depressive disorder.
         [Note: Notification not in service record, Applicant provided a dated and signed copy.]
001127:  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.
         [Note: Notification not in service record, Applicant provided a dated and signed copy.]
001129:  Commanding Officer, RTC Great Lakes, directed Applicant's discharge with an uncharacterized service (entry level separation) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by oppositional defiant disorder and depressive disorder. Commanding Officer comments (verbatim): [As evidenced by the listed enclosures, an erroneous enlistment has occurred. I authorize separation from the naval service with an Entry Level Separation. Reentry code: Not Eligible (RE-4).]
         [Note: Letter not in service record, Applicant provided a dated and signed copy.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001205 with an uncharacterized service (entry level separation) for defective enlistment and induction due to erroneous enlistment (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 & 3: The Board has determined that through an unfortunate series of administrative and procedural errors the Applicant’s discharge dated 000824 was erroneously executed. While the Commanding Officer, Recruit Training Command, initially authorized the Applicant’s separation due to a defective enlistment and induction due to erroneous enlistment as evidenced by an oppositional defiant disorder, the fact of the matter is that even after the Applicant was properly notified of this action and had signed the appropriate discharge documents waiving his right to consult with qualified counsel and accepting the stated reason for discharge without dispute, the Applicant was given the opportunity to remain in boot camp and continue his basic training. The Applicant could have chosen to be discharged and sent home at this time, but instead chose to remain at boot camp. The descriptive criteria associated with the Separation Code, Block 26 of the DD Form 214, in the Applicant’s case JFC (Erroneous Entry (Other)), indicates the Applicant’s enlistment was erroneous, in this case, due to the existence of a pre-existing condition. The Applicant was processed for an entry-level separation based upon his inability to meet the Navy’s accession standards for enlistment. The Applicant was diagnosed as having an oppositional defiant disorder and depressive disorder. Had the Navy known the Applicant’s psychological history prior to induction, it would have been cause for rejecting his application for enlistment. The causes for rejection for appointment, enlistment, or induction due to a history of personality, conduct, and behavioral disorders include: (1) disorders as evidenced by frequent encounters with law enforcement agencies, antisocial attitudes or behavior that, while not sufficient cause for administrative rejection, are tangible evidence of an impaired capacity to adapt to military service. (2) Disorders as evidenced by history, interview, or psychological testing the degree of immaturity, instability, personality inadequacy, impulsiveness, or dependency will seriously interfere with adjustment in the Armed Forces as demonstrated by repeated inability to maintain reasonable adjustment in school, with employers and fellow workers, and other social groups. Relief denied.

The Board’s charter limits its review to a determination on the propriety and equity of the discharge period in question. In the Applicant’s case, the Board considered the Applicant’s entry-level separation processed on 001205 proper and equitable, and the reason for separation accurate and appropriate. The Applicant was diagnosed by competent medical authority and found to have an oppositional defiant disorder and a depressive disorder.

It is unfortunate that the administrative difficulties caused by the erroneous discharge took several weeks to resolve. However, according to the documents submitted by the Applicant, the administrative issues were resolved by November 9, 2000, certainly well within the 4 week timeframe that should have been expected by the Applicant after he was counseled that he would incur 4 weeks or more “A1” time between RTC and his follow on “A” school. Furthermore, even after the Applicant’s unauthorized absence, he was still given the opportunity to remain on active duty in the naval service. The Applicant chose at this time to take an administrative discharge, once again waiving his rights to legal counsel and accepting a reason for separation due to a defective enlistment and induction due to erroneous enlistment, as evidenced by an oppositional defiant disorder and the additional diagnosis of depressive disorder, without dispute. The Narrative Reason Code for Separation, Erroneous Entry (Other), is an accurate description of why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

Issue 2: The Board finds that the discharge documentation accurately reflects the Applicant’s mental health at the time of his discharge, and was proper and equitable at the time of issuance. The contention that these conditions either never existed or no longer exist does not provide a legitimate basis to alter history. Furthermore, the use of the DSM-IV, Multiaxial Assessment System format is optional and has no bearing on the validity of the diagnosis, only the format by which it is reported. The Applicant was diagnosed with Axis I: Oppositional Defiant Disorder, 313.81, EPTE and Depressive Disorder NOS, 311, EPTE by competent medical authority at Recruit Mental Health, Recruit Training Command, Great Lakes and was appropriately recommended for an entry level separation. Relief denied.

With regard to the Applicant’s request for the Board to make a recommendation to change his reenlistment code to RE-1. The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Therefore, the Board cannot grant relief on this issue.

 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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 12 Jun 01, Article 1910-130 (formerly 3620280), Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

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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