Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801477

Original file (ND0801477.rtf) Auto-classification: Denied

ex-PR2, USN

Current Discharge and Applicant’s Request

Application Received: 20080702
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USNR (DEP) NFIR - 19890821             Active:         19890822-20000406 HON
                                                                                 20000407-20040722 HON

Period of Service Under Review:
Date of Enlistment: 20040723      Period of Enlistment : Years Extension         Date of Discharge: 20060525
Length of Service: Year Months 03 D ays        Education Level: NFIR   Age at Enlistment: 25   AFQT: NFIR
Highest Rank/Rate:       PR1      Evaluation Marks: Performance:   3.0 ( 1 ) Behavior: 3.0 ( 1 )        OTA: 2.71
Awards and Decorations (per DD 214): Rifle Pistol

Periods of UA/CONF: NJP: SCM: SPCM: CC:

Retention Warnings:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MISCONDUCT (SERIOUS OFFENSE) ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/Medical Record:                  Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education/Training:
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:          Community Service:                References:
Additional Statements:
From Applicant:         From Representation:     From Congress member:

Other Documentation (Describe):

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

Applicant’s Issues

1. Applicant did not receive adequate medical care from the Navy.
2. Applicant should have been referred to Disability Evaluation System.

Decision

Date: 2008 1030    Location: Washington D.C. R epresentation : CIVILIAN COUNSEL

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE) .

Discussion

: ( ) . The Applicant contends he is entitled to a discharge characterization upgrade due to his diagnosis with Attention Deficit Hyperactivity Disorder (ADHD), which was not adequately treated by the military nor properly referred to the Disability Evaluation System. 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. The Applicant was administratively separated by an Administrative Separation Board for illegal drug use; specifically, the wrongful use of a prescription drug that was not prescribed to him. The record of evidence shows the following relevant information:

- 19 August 2004: The Applicant, based on a self-referral, was evaluated by a Navy psychiatrist and diagnosed with
mild depressive symptoms. The Applicant did not want medication due to his duties and reported he was involved in
counseling for his symptoms. The psychiatrist made no psychiatric diagnosis and recommended the Applicant
continue counseling sessions.

- Unknown date: The Applicant was diagnosed with ADHD by a civilian psychologist. There is no evidence the
test results or the diagnosis provided by the civilian psychologist were supplied to the Navy.

- 13 October 2004: Preliminary inquiry report for improper computer usage conduct.

- 21 October 2004: The Applicant returns to Navy psychiatry and reports his civilian diagnosis of ADHD. The
Applicant reported to the Navy psychiatrist he would provide the civilian test results and diagnosis to the Navy. The
Navy doctor’s ‘Plans and recommendations’ states medications will be considered after the Applicant provides tests
and diagnosis for evaluation. Again, there is no evidence the Applicant ever submitted these reports as promised.

- 10 June 2005: The Applicant completes form DD 2807-1, Report of Medical History, on which he denied ever
having:
        - Nervous trouble of any sort
         - Loss of memory, amnesia, or neurological symptoms
         - Received counseling of any type, or
         - Been evaluated or treated for a mental condition

- 25 September 2005: Consultation sheet requesting the Applicant be evaluated for an addiction to pornography. The
record contains no evidence the Applicant completed this consultation with Navy doctors.

The Applicant’s argument rests primarily on the failure of Navy medical to properly diagnose and treat his ADHD and related learning disabilities. The NDRB determined the Navy doctors who evaluated him did not feel he warranted treatment based on the symptoms he reported. Furthermore, he did not provide the diagnosis made by his civilian psychologist for the Navy to review and consider as he promised he would do. Additionally, the diagnosis documentation was not provided to the NDRB as part of his DD-293 application in support of his claim. The NDRB determined the claim the Applicant was subsequently prescribed the medication he wrongfully used is not relevant to this case. At the time of the misuse, Navy doctor’s had not prescribed the medication in question to the Applicant; he was discovered taking prescription medication during a command urinalysis. The record indicated the Applicant was taking his daughter’s prescription medication of Adderall for ADHD.

The NDRB determined the Applicant’s wrongful use of a prescription medication and his continued performance of critical duties involving life support equipment on aircraft met the criteria established for “Under Other Than Honorable Conditions” characterization of service, as also determined by the Administrative Separation Board. It should be noted the prescription medication in question would have disqualified him from continuing to perform his duties involving working with life support equipment on aircraft; however, it would not disqualify him from continued naval service.

The Applicant has requested an upgrade in his characterization to “General (Under Honorable Conditions). For the edification of the Applicant, a “General (Under Honorable Conditions)” discharge is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. The Board determined the Applicant’s characterization as awarded by the Administrative Separation Board was appropriate and an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92.

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, provided 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 granted 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.

Employment/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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons. 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | 2008_Navy | ND0801477

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