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NAVY | DRB | 2007_Navy | ND0700601
Original file (ND0700601.rtf) Auto-classification: Denied
ex-PRAN, USN
ND07-00601
Current Discharge and Applicant’s Request
Application Received: 20070328   Characterization Received:
Narrative Reason: CONDITION, NOT A DISABILITY    Authority: MILPERSMAN 1910-120

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Enhance employment opportunities
                           2. Characterization not warranted by reason for discharge
                           3. Post-service conduct

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall CONDITION, NOT A DISABILITY .
Date: 20 080117             Location: Washington D.C         R epresentation :

Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). The Applicant contends that his service should be characterized as honorable as the reason for his discharge was his medical condition caused by an injury suffered in training. Discharges are presumed proper and equitable unless there is substantial credible evidence to rebut the presumption, either in the record or as submitted by the Applicant. Per regulation, characterization of service when the reason for discharge is mental or physical conditions is honorable, unless general (under honorable conditions) is warranted. An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. In the absence of a specific finding from an administrative board, a characterization of service as General may be awarded based on a review of a Sailor’ s overall service record. In the Applicant’s case, however, his record did not contain any specific evidence of misconduct, nor did the Commanding Officer identify any information that would constitute significant negative aspects of conduct or performance. The Board did not consider the Applicant’s non-worldwide assignability caused by injury incurred during training to be a significant negative aspect of conduct or performance that outweighed the positive aspects of his service record. Therefore, the Board determined that the characterization of service should change to honorable.

Issue 3 ( ). The Board determined this issue was moot in light of its resolution of Issue 2.

Issue 4 ( ). Although not raised by the Applicant, the Board noted an error in the Applicant’s administrative processing. The Applicant’s notification indicated that the right to a general court-martial convening authority (GCMCA) was not applicable. When using the notification procedure for separation processing, a member not entitled to an administrative discharge board does have the right to GCMCA review. Although incorrectly notified of this right, the Board noted that the Applicant explicitly did not object to separation, and that the case was in fact forwarded to a GCMCA as the Separation Authority. Therefore, the Board found no prejudice to the Applicant as a result of this error.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20040412 - 20050124              Active:         
Period of Service Under Review:
 Date of Enlistment: 20050125      Years Contracted : ; Extension:   Date of Discharge: 20060411
Length of Service : 01 Yrs 02 Mths 17 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 92          Highest Rank /Rate : PRAN
Evaluation marks (# of occasions): NOT FOUND IN RECORD Awards and Decorations ( per DD 214): NDSM, GWOTSM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20051129:        Applicant processed for first period LIMDU.

 20060106:        Medical Record: Reason for visit: Neuroscience Department, referral for electrodiagnostic evaluation of bilateral UEs (numbness and tingling since fall, injured upper back). Patient describes a very REAL phobia of needles so electromyography portion not done. Normal study, no evidence for peripheral neuropathy in examined nerves. Radiculopathy not done. Exam most consistent with myofascial pain. Education on myofascial pain; get MRIs; follow up ortho-amb
         Diagnosis: Myalgia and myositis; adhesive capsulitis of shoulder; numbness (hypesthesia)
         Recommendation: Released w/o limitations; follow up with PCM and/or ortho clinic .
20060119 :        Medical Record: Reason for visit: Follow-up back pain & shoulder
         Applicant referred to mental health and declined. Repeatedly stated desire to separate and has been working with JAG officer and been in contact with command regarding best option for patient. States desire to go home and pursue medical treatment in expedited fashion.
         Diagnosis: Joint instability shoulder region; adhesive capsulitis of shoulder; myalgia and myositis, nonallopathic lesions lumbar; nonallopathic lesions thoracis; upper back pain (between shoulder blades); numbness (hypesthesia); tingling (paresthesia); nonallopathic lesions rib cage; tendonitis rotator cuff; thoracis outlet syndrome.
          Recommendation: Follow through with obtaining MRI and continuing therapy.

20060119:        Applicant found fit to return to duty from limited duty. N ot world-wide assignable. Must be stationed near major medical facility. No sea duty .

20060125:        AIMD North Island, CA informed COMNAVPERSCOM of Applicant’s non world-wide assignability. Recommended separation.

20060227:        BUPERS directed that Applicant be involuntarily separated .

20060310:        NAVPERS 1070/613 Administrative Remarks entry adv is ed Applicant that medical condition limited him as non-worldwide assignable/assignment limited . Restrictions no sitting more than 20 minutes; lifting in excess of 10 pounds; no pushing/pulling/twisting; no jumping/running; no standing in excess of 15 minutes. Although fit for continued Naval service, due to limitations being recommended for separation. Applicant submitted handwritten statement agreeing to separation as the “best option for my phy sical and mental well being. ”

Discharge Process

 Date Notified:                                       20060313
Reason for Discharge:    -
         PHYSICAL OR MENTAL CONDITIONS
Least Favorable Characterization:       

Date Applicant Responded to Notification:                 20060310
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       (see discussion of Issue 4 )
         GCMCA review                                (see discussion of Issue 4 )

20060313:        Applicant found physically qualified for separation.

 Officer-in-Charge Recommendation (date):         ( 20060318 )
Separation Authority (date):     COMMANDER, HELICOPTER MARITIME STRIKE WING ( 20060328 )
Reason for discharge directed:  -
         PHYSICAL OR MENTAL CONDITIONS
Characterization directed:     
Date Applicant Discharged:       20060411

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe) History Outline ; Ltr from BCNR

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 25 May 2005 until Present, Article 1910-120, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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