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NAVY | DRB | 2005_Navy | ND0501245
Original file (ND0501245.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SN, USN
Docket No. ND05-01245

Applicant’s Request
The application for discharge review was received on 20050721. The Applicant requested a documentary record review and that his characterization of service be changed to honorable. The Applicant designated a civilian counsel as his representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case an impropriety in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the characterization of service shall change to “HONORABLE” and the reason for discharge shall remain “CONDITION, NOT A DISABILITY”.

 PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Issues submitted by the Applicant, as an attached document to the DD-293:

 “ISSUES: WHY AN UPGRADE OR CHANGE IS REQUESTED AND JUSTIFICATION FOR THE REQUEST

I received a discharge of General (Under Honorable Conditions) on September 3, 1998 after a little more than one year of service due to a sleepwalking condition (somnambulism). (See exhibit 1, DD Form 214 in DD Form 293, BLOCK 8). This discharge should be upgraded to an Honorable discharge because the General discharge was both improper (for containing a falsity implying that I had a significant negative aspect in my record) and inequitable (because it is not consistent with the policies and tradition of the service and is arbitrary and capricious). In addition, my post-discharge record shows that I am a stable, contributing member of the community and that an Honorable Discharge would reflect favorably upon the United States Navy.

At the age of twenty, I joined the United States Navy after being inspired by my grandfather, G_ T_. He is the one who raised me and he had been a chief gunner’s mate. When I joined the Navy, he had been ill and soon after, by the time I was 22 years old, he had died of non-Hodgkin’s lymphoma.

Soon after graduating from initial training, I served aboard the USS Gunston Hall from October to December 1997 on temporary assigned duty and the commanding officer wrote a letter of appreciation for my outstanding performance. (See the exhibit in Block 8).

I then reported for training at the Naval Training Command Great Lakes, IL, to attend Advanced Electronics Technical Core for electronics training. I graduated that program and then reported to Fire Controlmen ‘A’ School for further training. I was training to be a Fire Controlman. There I learned that I am a sleep walker and was discharged from active service for convenience of the Government (See MILSPERMAN 3620200 (6203) now designated as MPM 1910-120). Even though I had hardly begun my active career, I received a letter from my Chief, CPO E_ M_, describing my performance both on and off duty as well within the high standards expected by the Navy. (See the exhibit in Block 8).

Following my discharge, I later joined the United States Naval Reserve as a heavy equipment mechanic in a construction battalion unit and served honorably during that enlistment and was active in making my unit a superior organization. (See my letter of commendation and other supportive memoranda in Block 8)

In the meantime, as a civilian, I enrolled in college and became a fulltime substitute high school teacher in Dilley, Texas, where I teach physics, anatomy and chemistry. I am the founder and sponsor for the after school rocket club where the students research flight dynamics and compete in the American Rocketry Program. I also mentor and instruct students in a special extracurricular program designed to help youths to recover their credit. (The Vice Principal, B_ B_, wrote a letter describing my activities in Block 8). I am a sports coach for a T-ball team and am active in the Dilley Chamber of Commerce. (See the letter of support commending my activities in Block 8). I continue to better myself and recently obtained admission to a bachelor level degree program at a university in Minnesota for its business school. (See Block 8).

I applied for the GI Bill to help pay for college and the Veterans Affairs Department denied my claim since I did not have an Honorable discharge for my short time on active service. I later learned that sleep walking is not a reason for a General discharge unless the servicemember has “a significant negative aspect in his conduct or duty performance that outweighs the positive aspects of the service.” Spurred by that information, I then learned (according to CMDR H_ at NAVPERSCOM) that someone must have indicated that during my service I received nonjudicial punishment at a captain’s mast under Article 15 of the Uniform Code of Military Justice.

I never was in any trouble while I served with the United States Navy. My discharge contains an incorrect characterization because of this error.

I request that my discharge be upgraded to Honorable because according to the policy of the United State Navy a separation for the convenience of the Government will be Honorable unless another Article requires a different characterization. There is no Article that requires a different characterization in my case since I had no blemishes on my record while I served. The discharge is inequitable because it is not consistent with the policies and traditions of the service since a discharge for sleepwalking is normally Honorable unless there is something in my record that is so negative as to outweigh that characterization.

Furthermore, an arbitrary and capricious action by someone who processed my discharged gave me a reentry code of RE-3g thereby indicating that I had received some sort of significant negative aspect and thereby causing my discharge to be characterized as General (Under Honorable Conditions). The error involved is prejudicial to me in both my military and civilian life.

Finally, the discharge is improper because it contains the falsity that I had some sort of blemish on my record that would cause me to suffer a discharge characterization of anything less than Honorable. I never had any significant negative aspect in my service as a member of the United States Navy.

I am a proud member of the Navy and I request that my discharge documents reflect the honorable service I performed.”



Documentation
The Applicant s submitted the following documents to be considered in addition to the Applicant’s official service and medical records:
Applicant’s DD Form 214
Letter from J_ M_, attorney at law, dated July 11, 2005 (2 pages)
Letter of Appreciation from Commanding Officer, USS Gunston Hall (LSD 44), dated December 12, 1997
Memorandum from ABEC (AW) E_ M_, dated July 29, 1998
Letter from Commander Naval Reserve Force, dated March 29, 2002
Letter of Commendation from Commanding Officer NCFSU 3, dated September 06, 2003
Equipment rodeo, team congratulatory letter, undated
Letter of Commendation from Rear Admiral C.R. K_ for the period of May 01, 1999 through September 30, 2003
Appointment Squad Leader, dated October 03, 2002 (4 pages)
Reference letter from B_ B_ Vice Principal, Dilley (Texas) High School, dated May 27, 2005
Reference letter from J_ E_, 2 nd Vice President, Dilley Chamber of Commerce, dated June 23, 2005
Admission Letter from Capella University, dated June 23, 2005
Letter from J. T_, Adjudication Officer, Department of Veterans Affairs, dated March 02, 2000
 Sailor/Marine American Council of Education Registry Transcript, dated June 17, 2005 (6 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970611 - 19970706      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19970707             Date of Discharge: 19980903

 Length of Service (years, months, days):

         Active: 01 01 27
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 20

 Years Contracted: 4 (24 month extension)

 Education Level: 12                                 AFQT: 76

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                                    Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Rifle Sharpshooter Ribbon


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

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

 Chronological Listing of Significant Service Events :

980318:  Medical evaluation by Mental Health Unit, Naval Hospital, Great Lakes, IL. [Extracted from Commanding Officer’s letter dated 980721.]
980629:  Medical evaluation by Primary Care Physician at Branch Medical Clinic:
         Complains of trouble sleeping, nightmares and sleepwalking. Referral to Mental Health Unit.

980701:  Mental Health Unit, Naval Hospital, Great Lakes, Illinois:
         Diagnosis: Sleep impairment, nightmares and sleepwalking.

980706:  Medical evaluation by Mental Health Staff at Naval Hospital, Great Lakes
          Documented sleepwalking, somnambulism is medically clear.

980714:  Report of Medical Assessment: Question 15: Do you have any conditions which currently limit you ability to work in your primary military specialty or require geographic or assignment limitations. Answer: Yes Sleepwalking.

980714:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of convenience of the government - physical conditions.

980714:  After being advised of his rights the Applicant elected not to consult with counsel and to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
980720:  Report of Medical History: Separation Physical, question 10 - Past/Current Medical History: Sleep walking, swollen or painful joints, foot trouble, frequent trouble sleeping.
         Comments: History of s omnambulism - admin sep pending condition not a disability.

980721:  Commanding Officer, Service School Command, Great Lakes, IL directed the discharge of SN I_ (Applicant) with a general (under honorable conditions) by reason of convenience of the government on the basis of other designated physical condition. Commanding Officer’s comments: “I concur with the medical officer’s diagnosis that SN I_(Applicant) should be separated from the naval service based on his sleepwalking. SN I_(Applicant)’s sleepwalking will interfere with him performing military duties in the Navy, and could lead to danger for himself or others. I consider him to have no potential for further naval service.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19980903 for convenience of the government due to a physical or mental condition, not a disability (A) with a service characterization of general (under honorable conditions). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board discerned an impropriety in the Applicant’s characterization of service (B and C). The Board ’ s vote was unanimous that the characterization of service shall change to “honorable” and the narrative reason for discharge shall remain “condition, not a disability”.

The Applicant contends that his characterization of service was improper because a general discharge is only allowed if his record contains negative aspects. Furthermore, he claims an impropriety based upon an inconsistent, arbitrary and capricious application of the policies. Under applicable regulations, separations based on a convenience of the government due to physical or mental conditions (not a disability) should be honorable unless a general (under honorable conditions) or an entry-level separation is warranted. A general discharge may be warranted if the Applicant’s service record contains records of nonjudicial punishments, disciplinary actions, or if other significant negative aspects existed which outweighed the positive aspects of the member’s period of service. Additionally, a general discharge may be warranted if the Applicant’s performance evaluation averages are not sufficient to merit an honorable discharge. In the Applicant’s case, the record contains no evidence of NJP, other disciplinary action, or counseling’s for substandard performance. Based upon the Applicant’s service record, the Board unanimously agreed the Applicant’s characterization of service was improper and recharacterization to honorable is warranted. Relief granted.

 The Applicant contends that he needs an upgrade to utilize the G.I. Bill. There is no requirement or law that grants recharacterization based on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing employment, housing, medical, or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s issue is without merit. Relief based upon this issue is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. This issue does not warrant relief.

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 or any other evidence related to his discharge 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 5420.174D 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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