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NAVY | DRB | 2002_Navy | ND02-01230
Original file (ND02-01230.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-01230

Applicant’s Request
The application for discharge review, received 020828, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to submission of the application, the Applicant obtained representation by the Disabled American Veterans organization.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030612. 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 and narrative reason of the discharge shall not change. The discharge shall remain: ENTRY LEVEL SEPARATION/Entry level performance/conduct, authority: NAVMILPERSMAN, Article 3630200.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was inequitable because it was documented in the “Narrative Reason for Separation” as “Entry Level Performance/Conduct.” The discharge is improper because there is not evidence of conduct being an issue in the reason for separation. The discharge was based on a medical condition, torn ACL in the left knee, which interfered with performance, but not conduct. This condition was present before entering boot camp but my recruiter told me not to worry about it because it would not affect my training. The discharge of “Uncharacterized separation” is inhibiting my ability to enter the police force in Baltimore City. There is nothing in my military personnel file indicating an issue of conduct. The discharge was based solely on my inability to perform due to knee problems which were aggravated in boot camp. While under the Navy’s medical care during boot camp, the doctor who was to operate on my knee accused me of using Navy benefits to treat a pre-existing condition. He even threatened to send me to jail for abusing the medical treatment available in the Navy. This was not my intention, which is the reason why I informed my recruiter prior to boot camp about my knee problems. The boot camp training simply made the condition worse which is the reason I ended up receiving medical attention. The doctor gave me two options after my examination. One was to receive an operation by the doctor threatening and accusing me of abusing the benefits of the Navy or go home with a discharge. I opted to go home and have the condition treated outside the military. Therefore, I was discharged and received no major medical treatment at the Navy’s expense. The condition was evaluated again after my discharge at my expense. As the Board reviews my military personnel file they will find no evidence of improper conduct. I am very interested in pursuing a career in the police force and need this discharge changed in order to achieve this goal. The Board should also know that an uncharacterized discharge needs to be changed in order to be accepted into the police department. Therefore, the discharge should be changed to “general/Under Honorable Conditions” as the discharge was related to a medical condition.

Submitted by DAV:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Entry Level Separation to that of General, Under Honorable Conditions.

The FSM served on active service from October 23, 1991 to November 12, 1991 at which time he was discharge due to poor entry level performance/conduct.

The FSM contends the current discharge is improper because there is no evidence of bad conduct, and therefore, it cannot be related as an issue. Also he notes that the notation of conduct has affected his ability to obtain gainful employment. Therefore, the description of conduct should be removed from the Applicant’s discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determined whether relief is warranted. See, SECNAVINST 5429,174(c), Par. (f) (1).

In continuance, the FSM goes onto explain that the problem with his active duty were not derived from conduct, but from his disability. He went for examination of his left knee condition, and was berated by the examiner. Results were that he was given two choices, one, received an operation by a doctor who was threatening him and accusing him of abusing the Navy Health Care system, or two, go home. He chose to go home and received no further care from the Navy.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVINST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Convenience Of The Government, removing the notation of conduct. As to the request of the change of discharge to reflect a General discharge we leave that to a determination by the Board.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Documentation
Only the service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910531 - 911022  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 911023               Date of Discharge: 911112

 Length of Service (years, months, days):

         Active: 00 00 20
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 42

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

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

ENTRY LEVEL SEPARATION/Entry level performance/conduct; authority: NAVMILPERSMAN, Article 3630200.

 Chronological Listing of Significant Service Events :

911024:  Recruit Performance Remarks: SNR sent to sick call due to knee pain from previous injury. Placed on Limdu, missed first uniform issue.

911025:  Recruit Performance Remarks: SNR tried to stand up on the line (just as the company was getting into instructional position for first night in house lecture) he fell and hit his head. EMD was called – he was placed on 24 hr bed rest. Did not receive lectures. SNR is on crutches.

911026:  Recruit Performance Remarks: SNR was in the head, tried to stand without crutches and knee brace, fell down again, hit his head, EMD was called again. SNR placed on 3 more days bed rest, has not received any training yet.

911027:  Recruit Performance Remarks: SNR handed me his medication and told me I’d better keep it because he was tempted to take it all a once. SNR is very emotionally distressed about his injuries as well as problems at home. He was assigned to CAT II sleepers in Div I for the night. Recommend REU/possible separation.

911029:  Recruit Performance Remarks: LCPO screening SNR, sent to REU due to member wanting to hurt himself.

911029:  Mental Health, Naval Hospital, Orlando, FL: This 21 year old, single, Caucasian, male recruit was referred to REU by Recruit Sick Call. SNR was seen on P-2 Day of Training. SNR reports chief complaint. SNR reported being the 2 nd of 2 siblings from an intact family. But SNR states his parents are having marital problems and are about to divorce. He states he must go home. SNR admitted being the victim of emotional abuse. He states his father yelled at him and belittled him. SNR had no particular problems establishing or maintaining friendships. SNR denied a history of legal difficulties. He graduated high school in. He reported problems in middle school (suspended for fighting). SNR described the use of alcohol as unremarkable. He denied the use of drugs. SNR currently maintains a good relationship with his mother. He does not get along with his father. SNR reports no past psychiatric history. The past history before enlistment in the USN, as revealed by SNR, is considered essentially reliable. Patient has an injury to his left leg that he states happened at Orlando Airport. He does not want treatment he just wants to go home. He refuses to continue training and insists that he will be of no use of the Navy. He stated that he will, “do anything” to get out of the Navy.
         Mental Status Exam: Revealed an alert, well oriented, male recruit in moderate emotional distress. SNR’s mood was irritable and anxious with angry and tense affect. Eye contact was good. Recent and remote memory were generally intact. Speech was clear and coherent and reflected average intellectual functioning. Thought content revealed a desire for discharge with no present evidence of delusions, hallucinations, gross psychotic features nor phobias. Judgement and insight were poor. SNR denied current suicidal ideation. Suicide risk judged as low.
         Diagnosis: AXIS I: DSM-III-T 409.38 Adjustment Disorder with Mixed Emotional Features.
         AXIS II: DSM-III-R V71.09, No diagnosis.
911029:  Retention Warning: Applicant advised of deficiency in conduct evidenced by incapability, made statement that he would take all his medications to hurt himself. 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.

911031:  Applicant notified of intended recommendation for discharge by reason of entry level performance and conduct. Advised least favorable characterization of service would be Entry Level Separation.

911031:  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. Applicant did not object to discharge.
911104:  Commanding Officer advised BUPERS of Applicant’s discharge with an entry level separation by reason of entry level performance/conduct. Commanding Officer’s comments (verbatim): “SR U_ (Applicant) has been counseled concerning noted deficiencies in performance and conduct due to his adjustment disorder. SR U_ (Applicant) lacks the necessary skills to meet military training standards and exhibits little potential for successful Naval Service. Entry Level Separation is directed.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 911112 with an entry level separation by reason of entry level performance/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 claims his discharge was based upon a medical condition. However, the record reflects that the Applicant did not adapt to his initial Navy training. The Applicant stated he would “do anything” to get out of the Navy and that he refused to train. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” unless there were unusual circumstances regarding performance or conduct which would merit an “honorable” characterization. The Applicant’s service record did not contain any unusual circumstances during his less than one month in the military to warrant a change of discharge. With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 15560A), 15 June 1987 until
14 Aug 91, 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 " 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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