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NAVY | DRB | 2003_Navy | ND03-00474
Original file (ND03-00474.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND03-00474

Applicant’s Request
The application for discharge review was received on 20030130. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to medical. The Applicant requests a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service and the reason for discharge was discovered by the NDRB. The Board’s vote was unanimous that the character and reason for discharge shall not change. The discharge shall remain: UNCHARACTERIZED (Entry Level Separation)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative (Disabled American Veterans ):
1. “ Dear Chairperson:

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 of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized Entry level Separation to that of Honorable, and a change of the narrative reason for discharge to reflect medical.

The FSM served on active service from October 26, 1998 to March 18, 1999 at which time he was discharged due to condition, not a disability.

The FSM contends the current discharge is improper because his active service was disrupted by his disability, which was beyond his control. That his four months and twenty three days of good service should count for an honorable 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 determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

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 SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the current discharge to reflect an Honorable discharge, changing the narrative reason as requested, providing some relief to the FSM, but 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.
Respectfully, ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1, Member 4, and Service 2)
Letter to Applicant from Board for Correction of Naval Records, dated October 23, 2002
Letter from Applicant, dated December 27, 2002
DD Form 149, dated September 11, 2002 with statement
United States Postal Service, dated February 8, 2000
Patient appointments, dated February 22, 1999
Appointment slip, dated January 19, 1999
Memorandum from Mental Health Clinic, dated February 11
Memorandum from Mental Health Clinic, dated February 3, 1999
Memorandum from Mental Health Clinic, undated
Article titled Headache, Migraine

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980729 - 981025  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 981026               Date of Discharge: 990318

 Length of Service (years, months, days):

         Active: 00 04 23
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: Unknown

 Highest Rate: FR

 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: None

* No Marks Found

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

UNCHARACTERIZED (Entry Level Separation)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

 Chronological Listing of Significant Service Events :

990210:  Medical Evaluation: Diagnosis: Psychological factors affecting headache pain, somnambulism.

990216:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of convenience of the government due physical or mental conditions not necessarily amounting to disability but affecting potential for continued active duty in the naval service as evidenced by diagnosis of somnambulism (sleepwalking).
990216:  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.
990219:  Commanding Officer recommended discharge uncharacterized (entry level separation) by reason of convenience of the government on the basis of a physical or mental conditions not necessarily amounting to disability but affecting potential for continued active duty in the naval service as evidenced by diagnosis of somnambulism (sleepwalking).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990318 with an uncharacterized (entry level separation) for convenience of the government due to a physical or mental condition, not a disability. (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. By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization. Applicant's service record did not contain any unusual circumstances during his less than five months in the military to warrant a change of discharge to "honorable."

The summary of service clearly documents that Uncharacterized (Entry Level Separation) Condition, Not a Disability , was the reason the applicant was discharged. No other Narrative Reason for Separation more clearly describes why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief based on this issue is not warranted.
The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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. The Applicant can provide documentation to support any claims of post-service accomplishments at that time. 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 18, effective
12 Dec 97 until 19 May 99, Article 1910-120 (formerly 3620200), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

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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