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NAVY | DRB | 2005_Navy | ND0500437

Original file (ND0500437.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-AA, USN
Docket No. ND05-00437

Applicant’s Request

The application for discharge review was received on 20050112. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “CONDITION THAT EXISTED PRIOR TO SERVICE.” The Applicant requests a documentary record discharge review. The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was 3 to 2 that the character of the discharge shall change. The Board’s vote was unanimous that the Narrative Reason for Separation shall not change. The discharge shall change to Honorable by reason of defective enlistment and induction due to fraudulent entry .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“ EQUITY AND PROPRIETY

The guidelines on the characterization of service dated 29 May 1996 ( SECNAVINST 1910.4B, Part 3. Paragraph B. 1. d ) state that:

“Due consideration shall be given to the service member’s age, length of service, grade, aptitude, and mental condition , and the standards of acceptable conduct and performance of duty.”

The above referenced regulation was not followed in my case because due consideration was not given to my state of mind and mental condition when I enlisted. This error of discretion prejudiced my rights. I have a recognized brain abnormality (attention deficit disorder) and a mental disorder. My documented disabilities work negatively on my ability to perceive error and arrive at sound decisions; that is the essence of my illness. A pre-service behavior was the basis for the characterization of my service. The pre-service behavior consisted of failing to disclose that I received childhood treatment for attention deficit disorder. Although it may be possible to consider pre-service activities in arriving at a characterization, due consideration was not given to my state of mind and mental condition when I enlisted. I had a mental condition that I didn’t even know I had (bipolar disorder) see Attachment” A” letters dated October 1, 2003 and Dec 1, 2004. My doctors did not fully understand my condition and neither did I. It is not proper, not equitable, and contrary to good conscience to disregard the positive aspects of the quality of my service (which was otherwise good) and merely hold the behaviors that constitute my mental illness against me in determining the characterization of my service. As my service record demonstrates, I met the standards of acceptable conduct and performance of duty for military personnel while I was in the military. This is evidenced by my record of promotion, the awarding of a national defense service medal and sea deployment ribbon, and by my appraisals which are at Attachment “B”. I ask that you please consider this issue under both propriety and equity .

EQUITY AND PROPRIETY

SECNAVINST 1910.4B, Part 3, B. 2. b. states:

“...Characterization of service as General (under honorable conditions) is warranted when significant negative aspects of the service member’s conduct or performance of duty outweigh positive aspects of his or her naval record.”

SECNAVINST 1910.4B, Part 3, B. 2. b was not followed in my case because the only negative aspect of my conduct was my mental illness - nothing else exists to have downgraded the characterization of my service. If the negative aspects had outweighed the positive ones, I would NOT have received a promotion and I would NOT have received good evaluations or I would have had some military and/or civilian offenses. With no history of conduct or performance problems and the only negative aspect being due to mental illness, my disability was, in essence used against me. That is a discriminatory practice and contrary to DOD principles and federal laws against discrimination based on disability. My rights were prejudiced by this error. I ask that you note in particular the evaluation submitted immediately upon my Administrative Separation (see Attachment “C”). As you can see, the remarks are glowing and I received above standards in “needs little supervision, produces quality work, few errors and resulting rework and uses resources effectively ”. The Navy can’t have it both ways; the only significant negative aspect that I had was mental illness. Please consider this issue under both propriety and equity .

The fact I served under the stress of combat in my condition without benefit of mediation with no misconduct and no unsatisfactory performance is extraordinary, I shouldn’t be punished for it. I enlisted for patriotic reasons, I fought in a war and I did the best I was capable of doing. I did not know that I had bipolar disorder and that it would worsen under the stress of war. Since departing the Navy, I am working at a coffee shop and undergoing psychiatric treatment. I am now on a medication, successfully holding down a job and trying to put my life back together. I pray that you will give full, fair and impartial consideration to all the factors in my situation including my combat service, my performance appraisals and the mitigating circumstances of my unique situation in making your determination. Thank you.

EQUITY

My discharge was not equitable because my disability was used against me in the characterization of my service. As my service record indicates, I met the standards of acceptable conduct and performance of duty for military personnel. This is evidenced by my appraisals (see attached document #1), my combat service, my medals and ribbons, and my record of promotion.

The only thing that prevented me from receiving an honorable characterization is the fact that I did not disclose (pre-service) childhood treatment for Attention Deficit Disorder. My doctors, however, did not fully understand my condition and neither did I. I have a medically recognized brain abnormality (Attention Deficit Disorder) and a mental disorder that I did not even know which I had which affected my ability to make sound decisions ( see attachment # 2 letter dated October 1, 2003 ). What may seem like bad judgment in not disclosing my condition is the result of bad chemistry not choice. My documented mental disabilities work negatively on my ability to perceive error and arrive at sound decisions; that is the essence of my illness. It is not equitable and contrary to good conscience to disregard the positive aspects of the quality of my service, which was otherwise good, and merely hold the behaviors that constitute my mental illness against me in determining the characterization of my service.

The fact that I served under the stress of combat in my condition without benefit of medication, with no misconduct and no unsatisfactory performance is extraordinary, I shouldn’t be punished for it.

PROPRIETY

My characterization of service was not proper due to an error of discretion which prejudiced my rights. Downgrading the characterization of my service constitutes an adverse employment action. An adverse employment action based solely on a disability is a discriminatory practice. My pre service conduct was held against me in characterizing my service, but due consideration was not given to my state of mind and metal condition when I enlisted. My disability was used against me, and that is contrary to DOD principles and federal laws against discriminating based on disability. My rights were prejudiced by this error. I was treated differently in the characterization of my service that a similarly situated individual without a mental disability would be. A similarly situated person with identical performance appraisals, combat service and promotion record would receive an honorable characterization.

I know that your decisions are reached on a case by case basis and I pray that you will give full fair and impartial consideration to all the factors in my situation including my combat service, my performance appraisals and the mitigating circumstances for my unique situation in making your determination. I enlisted for patriotic reasons, I fought in a war and I did the best I was capable of doing. I did not know that I had bipolar disorder and that it would worsen under the stress of war. Since departing the Navy, I am working at a coffee shop and undergoing psychiatric treatment. I am now on medication and trying to put my life back together. I pray that you will consider all of this information arriving at your decision. My disability should not have been held against me in the characterization of my service which was otherwise good. Thank you.”

Representative submitted no issues.

Documentation

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

Fax from Applicant, dtd January 18, 2006
Applicant’s DD Form 214
Evaluation Report and Counseling Record, dtd July 10, 2003 (2 pages)
Evaluation Report and Counseling Record, dtd August 21, 2003 (2 pages)
Letter from Clinical Psychologist, dtd October 1, 2003 (2 pages)
Letter from Psych Associates, dtd December 1, 2004
Pre-service medical information (4 pages)
Active duty medical information (2 pages)
Letter from Applicant, dtd March 22, 2005
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     20020212 - 20020312      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20020313             Date of Discharge: 20030905

Length of Service (years, months, days):

         Active: 01 05 23
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence:    None
         Confinement:                       None

Age at Entry: 21

Years Contracted: 4

Education Level: 12                                 AFQT: 37

Highest Rate: AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 4.00 (2)                      Behavior: 3.00 (2)                OTA: 3 .17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS)/ FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events :

020808: Psychological Intake Evaluation: AR N_ (Applicant) is a 21 y/o single, Hispanic, female, with 4 months of CAD. Her chief complaint is conflict with the PO3 in charge of her berthing. She says that she feels picked on and harassed by this particular female petty officer. AR N_ reports that she was diagnosed with ADHD as a teenager and was treated by a psychologist for almost a year.
         AXIS I: Adjustment disorder with anxiety and depressed mood
         ADHD, combined type.
         AXIS II: Personality disorder not otherwise specified, with histrionic and narcissistic traits.
         AXIS III: Medical conditions: No serious medical conditions are noted at this time.
         AXIS IV: Psychosocial: occupational and interpersonal problems.
         AXIS V: Global assessment of functioning: 70.
         Mental Status Examination: The service member was alert and oriented to person, place, time, and purpose of interview. Her thought content was cohesive with no delusions or hallucinations. Her cognition, abstraction, intellect, and memories were intact. While she reports suicidal thoughts, she denies any specific plan or intent. She admits to homicidal urges directed towards berthing PO, but denies intent or access to lethal means.
         Assessment: AR N_(Applicant) does not appear to have a mental disorder or defect. Rather she appears to be experiencing a maladaptive reaction to some serious psychosocial stressors. She exhibits some PTSD symptoms but not enough to meet DSM-IV criterion. Her Dysfunctional FOO appears to have had a lasting, negative impact on her sense of security and personality development. She exhibits some histrionic and narcissistic tendencies.
Findings/Recommendations: 1. The service member is not suicidal, homicidal, psychotic or gravely disabled, and does not require and would not likely benefit from psychiatric hospitalization. 2. AR N_(Applicant) is fit for retention in her rate and was returned to full duty. 5. AR N_(Applicant) was also recommended to meet with the CMC and discuss transfer to another department onboard the ship. 6. AR N_(Applicant) was recommended to contact her the psychologist who treated her as a teen, and obtain a copy of her records as she may have a preexisting condition that might preclude her from continuing to serve in the USN. 7. AR N_(Applicant) was also recommended to meet with a qualified practitioner to assess the risks and benefits of medications for the treatment of her symptoms.

030601: Medical evaluation by ship’s psychologist: AR N_ (Applicant) was seen on an emergency walk-in basis. She says that she is being harassed in her berthing. She says that she feels hurt and rejected by her peers. She says that she has no specific plan or intent or access to lethal means.
         Assessment: AR N_ does not appear to have a mental disorder or defect. Rather she appears to be experiencing a maladaptive reaction to some serious psychosocial stressors.
         AXIS I: 309.28 Adjustment disorder, with anxiety and depressed mood.
         314.01 ADHD, combined type.
AXIS II: 301.9 Personality disorder NOS, with histrionic and narcissistic traits.
         AXIS III: Medical conditions: No serious medical conditions are noted at this time.
         AXIS IV: Psychosocial: occupational and interpersonal problems.
         AXIS V: Global assessment of functioning: 70.
         Plan: The service member is not suicidal, homicidal, psychotic or gravely disabled, and does not require and would not likely benefit from psychiatric hospitalization. AR N_(Applicant) was recommended to begin psychotherapy with LT B_, to focus on her conflicts at work and its relationship to her dysfunctional FOO. AR N_(Applicant) was also recommended to meet with the CMC and discuss transfer to another department onboard the ship. AR N_(Applicant) was also recommended to meet with a qualified practitioner to assess the risks and benefits of medications for the treatment of her symptoms.

030612: Chronological Record of Medical Care: Applicant to medical for Rx of Wellbutrin as directed by psychologist Dr B_. Assessment: For adjustment disorder and depression. Plan: Full duty/follow up if there are any adverse reactions to medication.

030813: Separation Physical: Health Care Provider Comments: #12, 14, 15 Being processed for Admin Sep for personality disorder - adjustment disorder, ADHD. Applicant found physically qualified for separation from active duty.

030821: Commanding Officer, USS NIMITZ (CVN 68) directed discharge with a general (under honorable conditions) by reason of defective enlistments and inductions due to fraudulent entry into the naval service, and convenience of the government due to personality disorder. Commanding Officer’s comments: “Competent medical authority determined that AA N _(Applicant) has a personality disorder, not otherwise specified, with histrionic and narcissistic traits . Per enclosure (3), AA N _(Applicant) was diagnosed with ADHD, major depression, and chronic anxiety prior to enlisting in the Navy . During her initial evaluation by LT B _ on 8 August 2002, she admitted to having suicidal thoughts and homicidal thoughts directed toward her supervisor, but denied any specific plan or serious intent . She admitted lying to LT B _ in previous sessions about the extent of her psychiatric history but was afraid to report it f or fear of being discharged from the Navy.
On 20 July 2003, AA N _(Applicant) presented LT B _ with copies of her pre-service psychiatric records . She stated that both her parents served in the Army and had coached her to withhold her medical history from Navy recruiters . Based on AA N _(Applicant)’s chronic pattern of maladjustment and history of homicidal and suicidal thoughts, she appears to constitute an ongoing danger to herself or others . AA N _(Applicant) manifests a long-standing disorder of character and behavior of such severity that she is deemed unsuitable for further military service . Accordingly, I have separated AA N _(Applicant) from the Navy and characterized her service under General Conditions.”

030905: DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of fraudulent enlistment into the naval service, authority: MILPERSMAN, Article 1910-134.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030905 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of general (under honorable conditions). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper, but not equitable (B and C).

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. A member may be separated for defective enlistment and inductions – fraudulent entry into the Naval service for effecting a fraudulent enlistment by falsely representing or deliberately concealing any qualification or disqualification prescribed by law, regulation, or order. The evidence of record indicates that during the enlistment process, On DD Form 2807, Question 17g, the Applicant denied having ever been evaluated or treated for a mental condition. While on active duty, the Applicant encountered difficulties with her berthing Petty Officer. The evidence of record indicates that these difficulties compelled the Applicant to seek psychiatric treatment. During the course of her treatment, the Applicant revealed that she in fact had been evaluated and treated for Attention Deficit Hyperactivity Disorder, a mental condition. Furthermore, the Commanding Officer’s letter indicates that the Applicant was coached by her parents, both military veterans, to conceal her history of mental treatment. Based upon the evidence of record, the Board was convinced that the Applicant wrongfully concealed her history of Attention Deficit Hyperactivity Disorder for the sole purpose of effecting her enlistment into the Naval service. The Applicant's DD Form 214, Block 28, Narrative Reason for Separation, indicates she was separated by reason of defective enlistment –fraudulent entry. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable. A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. A thorough review of the Applicant’s service record failed to reveal any history of nonjudicial punishments, retention warnings, counselings, adverse evaluations, or involvement with civilian authorities. Furthermore, the Applicant’s evaluations indicate that her final individual trait average was a 3.17, well above that required for an honorable discharge. In those same evaluations, the Applicant is described as demonstrating “personal integrity, character, and professionalism” and as an “extremely intelligent and dynamic individual who thrives on a challenge.” Based on the evidence of record, the NDRB concluded that the Applicant’s service generally met the standard of acceptable conduct and performance of naval personnel. Although she did commit a fraud to enter active duty, the evidence of record indicates that the character of the Applicant’s service, while on active duty, met the standards for an honorable discharge. As such, by a vote of 3-2, the NDRB found that relief is warranted.

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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-134 (previously 3630100), Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

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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NAVY | DRB | 2005_Navy | ND0500437

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