Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700926

Original file (ND0700926.rtf) Auto-classification: Denied

ex-HN, USN
ND07-00926

Current Discharge and Applicant’s Request

Application Received: 20070626 Characterization Received:

Narrative Reason: PERSONALITY DISORDER NOT DISABILITY Authority: MILPERSMAN 1910-104

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:       1. Obtain GI bill

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

Date: 20 080103             Location: Washington D.C         R epresentation :

Discussion

Issue 1 : 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: Although not raised by the Applican t, the Board identified an issue of propriety regarding the reason for discharge. Per the MILPERSMAN , a m ember may be processed when the mental health evaluation was made by a competent mental health professional (MHP), there is documented evidence that the diagnosed personality disorder interferes with the member's performance of duty , the member has received a NAVPERS 1070/613, Administrative Remarks, counseling and warning, and the member has be en given an opportunity to overcome his deficiencies in performance and conduct prior to any administrative separation action for a personality disorder. As an exception, i f the member is diagnosed by competent MHP to be a danger to himself or others, the requirement for a NAVPERS 1070/613 counseling and warning does not apply. The Applicant was diagnosed as having a personality disorder that was so severe that his ability to function effectively in the naval environment was significantly impaired, and it interfered with his performance of duty . However, the MHP did not diagnose him as being a danger to himself or others, and he was not provided with a NAVPERS 1070/613, Administrative Remarks, counseling and warning. The Board reached this conclusion based on the contents of the Division Psychiatrist’s recommendation which was referenced by the command in its recommendation for separation, and the recommendation itself, which indicated that the most recent NAVPERS 1070/613 warning as “N/A.” The Board further noted that this recommendation was dated 20040618, more than 2 weeks before the Applicant was notified of the proposed separation. The Board did not conclude that this was a mere typographical error, because Commander, Navy Personnel Command responded to the recommendation via message dated 20040702, approving separation. Taken as a whole, the Board determined that an error had occurred which prejudiced the Applicant because he was not provided the opportunity to overcome his deficiencies in performance and conduct prior to any administrative separation action for a personality disorder. Therefore, the Board determined that a change of reason to secretarial authority was warranted. The Board further determined that the Applicant’s behavioral problems and attitude toward superiors, as documented in the MHP recommendation, were sufficient to support a characterization of general (under honorable conditions).

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)      200 11120 - 200 2116               Active:
Period of Service Under Review:
Date of Enlistment: 200 21117               Years Contracted : ; Extension: Date of Discharge: 20040817
Length of Service : 01 Yrs 09 Mths 01 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:                  Age at Enlistment:                AFQT: 35          Highest Rank /Rate : HN
Evaluation marks (# of occasions):       NOT FOUND IN RECORD
Awards and Decorations ( per DD 214): NDSM, CAR, GWOTEM, SSDR, MUC, PUC

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

200 40401 :        Division Psychiatry recommended to Division Surgeon that Applicant be administrative ly separated because of a severe personality disorder which significantly impairs his ability to adapt to military life and discipline . Clinical psychiatric diagnoses: Axis I: Depressive Disorder, Not Otherwise Specified; Axis II: Personality Disorder, Not Otherwise Specified .

20040608:        OIC, Headquarters Battalion, 1 ^st Marine Division, recommended to Commanding General, 1 ^st Marine Division, that Applicant be administratively separated for personality disorder.

Discharge Process

Date Notified:                                       20040706
Reason for Discharge:     -
         PERSONALITY DISORDER
Least Favorable Characterization:

Date Applicant Responded to Notification:                 20040706
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review                                * (see discussion Issue 2)

Cd r, 1 ^st Marine Division Recommendation (date): SEPARATION ( 20040618 ) * (see discussion Issue 2)
Separation Authority (date):     COMNAVPERSCOM ( 20040714 )
Reason for discharge directed: -
Characterization directed:      TYPE WARRANTED BY SERVICE RECORD
Date Applicant Discharged:       20040817

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)

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 19 June 2005, Article 1910-122 (formerly 3620225), Separation By Reason of Convenience of the Government - Personality Disorder(s).

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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NAVY | DRB | 2007_Navy | ND0700926

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