Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801587

Original file (ND0801587.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20080728

Characterization of Service Received:

Narrative Reason for Discharge: (OTHER)

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 20070623 - 20070724                 Active:

Period of Service Under Review:
Date of Enlistment: 20070725     Period of E nlistment : Years Extension         Date of Discharge: 20071015
Length of Service : Y ear s M onth s 21 D a ys Education Level: Age at Enlistment: AFQT: 76 Highest Rank /Rate : SR Evaluation M arks: Performance: None Behavior: None         OTA: None
Awards and Decorations ( per DD 214): R ifle Pistol

Periods of UA /C ONF : NJP : S CM : SPCM: C C :

Retention Warnings:

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 Representat ion :    From Congress m ember :

Other Documentation (Describe) :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 20 June 2005 until Present, Article 1910-130, SEPARATION BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS - ERRONEOUS ENLISTMENT.

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 .

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

Applicant’s Issues

1. Change RE code.
2. Characterization will follow for the rest of Applicant’s life.
3. Recruiter mislead the Applicant in to conceal ing a previous diagnosis of Conduct Disorder.

Decision

Date: 20 08 1030 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ERROUNOUS ENTRY (OTHER) .

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 , specifically the paragraph concerning , regarding .

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to the adverse effect the discharge will have on him for the rest of his life. 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 record of evidence shows the Applicant was found to have a disqualifying medical condition, Conduct Disorder. It was determined this condition existed prior to the Applicant’s entry into the Navy and disqualified him from further service. The Applicant was subsequently processed for discharge for “Erroneous Entry.” This reason is appropriate when an enlistment would not have occurred if relevant facts had been known and the enlistment was not the result of fraud on the part of the Applicant. The Applicant should be aware that, with respect to non - service-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an “U ncharacterized ” separation is considered the equivalent of an “H onorable ” or “G eneral ( U nder H onorable C onditions) ” discharge. The Applicant has requested to have his discharge upgraded to an “Honorable”. For the edification of the Applicant, an entry-level “Uncharacterized” discharge is awarded to members whose discharge is initiated within the first 180 days of continuous active duty unless exceptionally meritorious service is documented to warrant an “Honorable” conditions discharge or a lesser discharge is warranted. The Applicant’s record of service of less than three months does not meet the high standard required to characterize an entry-level discharge as “H onorable ” . The NDRB determined an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to wrongdoing on the part of his recruiter. The Applicant provides no evidence his recruiter guided him in the wrong direction and t he NDRB does not have the jurisdiction to investigate this matter . Furthermore, the NDRB determined the Applicant’s characterization of service and narrative reason for discharge were issued in accordance with regulations after the Navy carefully evaluated his case . The record of evidence shows the Applicant was referred to the Recruit Evaluation Unit for a “ fitness for duty “ evaluation based on the diagnosis of Conduct Disorder made 1 June 2007 . The applicant was evaluated on 5 September and 13 September by a qualified doctor. On 13 September the doctor determined the Applicant was fit for full duty and recommended a waiver be sought to allow the Applicant to remain in the Navy. However, on 17 September, the doctor then changed his opinion that a waiver was appropriate and noted seven specific symptoms of Conduct Disorder demonstrated by the Applicant in reaching this conclusion. He subsequently changed his recommendation to separating the Applicant due to a disqualifying psychiatric condition. The NDRB determined 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

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 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 | ND0801587

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