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NAVY | DRB | 2004_Navy | ND04-00759
Original file (ND04-00759.rtf) Auto-classification: Denied


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


ex-PR3, USN
Docket No. ND04-00759

Applicant’s Request
The application for discharge review was received on 20040413. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the submission of the Application, the Applicant obtained representation from Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety in the characterization of the Applicant’s service was discovered by the NDRB. Finding an inequity, the Board’s vote was 4-1 that the character of the discharge shall change to: HONORABLE /CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:
1. “The reason I am requesting an upgrade to my discharge from the Navy is that I don’t feel the discharge was appropriate. I served over three years, honorably with no misconducts. I was diagnosed with posttraumatic stress disorder in January of 2001, after a failed suicide attempt. The posttraumatic stress disorder has been acknowledged by both the Navy and Department of Veteran’s Affairs physicians (see attached documents). I am now receiving the medications I’ve needed all along now that I am a 70% rated disabled veteran. I gave over three flawless years of service to the Navy (good conduct medial, frocked to PR3) and developed mental condition I will be struggling with the rest of my life but somehow I was discharged as a second rate sailor. As far as I know, a General (under honorable conditions) discharge would be appropriately warranted when “significant negative aspects of the member’s conduct or performance of duty outweigh positive aspects of the record”. A serious mental condition that requires medications and professional help is not “negative conduct”.
Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 2. “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 General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from January 7, 1998 to February 26, 2001 at which time he was discharged due to Condition, Not a Disability.

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 noted is that the FSM had virtually completed his active duty service, had received his Good Conduct Medal, with his discharge pending for the expiration of his service, when he experienced a psychiatric/ suicidal episode. After examination by naval doctors he was found to have an Adjustment Disorder, with depressed mood but fit to continue with his discharge.

It is against the good order of the Navy to establish a medical discharge for this type of condition, as it is also against the good order of the Navy to discharge an Honorable service member with a less than Honorable discharge when the only defect to his character of discharge is a psychiatric condition.
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).
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 and was found fit to continue with his discharge with no further extension to his military service.
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.
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
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
VA Rating Decision (3 pgs)
 Ltr frm Applicant, undated
 Unofficial college transcript (3 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970731 - 980106  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 980107               Date of Discharge: 010226

 Length of Service (years, months, days):

         Active: 03 01 20
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (4 and 7 month extensions)
Education Level: 12                        AFQT: 44

 Highest Rate: PR3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 3.66 (3)                OTA: 3.33
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: NONE

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).



Chronological Listing of Significant Service Events :

Undated:         Applicant requested discharge by reason of convenience of the government due to a condition not a disability.

010201:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) characterization 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.
010201:  Applicant advised of 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.
010213:  Individual psychotherapy session.
         Diagnosis:
                   AXIS I: Adjustment d/o with depressed mood; r/o alcohol abuse
                   AXIS II: Deferred
                  AXIS III: None
          Plan:   
Fit for duty and responsible for his actions
                   Continue transition group until separated
                   Follow up with Dr. M_
010221:  Commanding Officer directed the Applicant's discharge general (under honorable conditions) by reason of a mental/adjustment disorder.
Parts of discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010226 with a general (under honorable conditions) characterization for convenience of the government due to a physical or mental condition not a disability (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (B and C).

Issues 1-2. The Board found that in the Applicant’s case, the characterization of service should have been the “type warranted by service record.” A review of Applicant’s records indicated an honorable discharge was warranted. Applicant’s performance and behavior marks were above the standard required for an honorable discharge and there was no adverse information that would have warranted any other characterization of his service. Therefore, relief to the character of service is granted.

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 33, effective
28 Aug 01 until 21 Aug 2002, Article 1910-120 (formerly 3620200), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                   Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023

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