Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801885

Original file (ND0801885.rtf) Auto-classification: Denied

ex-OS2, USN

Current Discharge and Applicant’s Request

Application Received: 20080916

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: US N R (DEP) 20040719 - 20040906        Active:

Period of Service Under Review:
Date of Enlistment: 20040907     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071212      Highest Rank/Rate: OS2
Length of Service : Y ear s M onth s 06 D a ys
Education Level:        AFQT: NFIR
Evaluation M arks: Performance: 5.0 ( 1 ) Behavior: 4.0 ( 1 ) OTA: 4.14

Awards and Decorations ( per DD 214):      CGMUC

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

NJP:
- 20050623 : Article 107 (False official statement)
Awarded : FOP

- 20050831: Article 92 (Failure of obey a lawful order)
         Awarded :

Retention Warning Counseling :

- 20050623 : For Article 107 (False official statement)
- 20071119 : No details; found in CO letter of 29 Nov 2007

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 :

Oth er Documentation :

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

Applicant’s Issues

1. No compensation r eceived for condition caused by service in the Navy .
2. Served honorably.
3. Post service accomplishments.

Decision

Date: 20 0 9 0114 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall CONDITION NOT A DISABILITY .

Discussion

: T his is 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 , for additional information regarding .

The Applicant contends his discharge was unfair because he received no compensation for a condition caused by his service in the Navy. Per Navy regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant he had a condition caused by his service in the Navy or that he was recommended , or processed , for a medical board by proper authority. To the contrary, the Applicant‘s medical record of 07 February 2007 indicates he was diagnosed with an a djustment disorder that did not constitute a physical disability ; he was recommended for administrative separation due to unsuitability with military service . The Applicant’s medical record of 28 Mar 2007 indicated he was seen for a follow-up appointment due to anxiety and again was recommended for administrative separation due to unsuitability per MILPERSMAN 1910-120 a second time . On 4 Oct ober 2007 , the Applicant was diagnosed as claustrophobic (not service aggravated ) and subsequently discharged based on a condition not deemed a physical disability in accordance with MILPERSMAN 1910-120. T he evidence of record indicates the Applicant was suffering from a condition chronic in nature but not considered a disability , thereby contradicting the Applicant’s contention his condition was caused by the Navy and he should be c ompensat ed .

: ( ) . The Applicant also contends his discharge was improper because he served honorably and was able to make rank the first time he was eligible . 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’s record of service is marred by one retention warning and two NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey a lawful order ) and Article 107 ( False official statement ) . T he evidence of records reflects on 26 November 2007, the Applicant was notified of the a dministrative separation processing for the c onvenience of the government based a physical or mental condition. Pursuant to MILPERSMAN 1910-120, a service member separated due to a physical or mental condition should receive an “H onorable ” characterization unless an entry level separation (“Uncharacterized”) or “G eneral ( U nder H onorable C onditions ) ” is warranted by the record of service. Based on a review of the records and evidence submitted by the Applicant, the Board d etermined an upgrade to “H onorable ” is not warranted due to the NJP’s awarded to the Applicant and lack of mitigating evidence presented by the Applicant . The Board determined the awarded discharge characterization was appropriate and an upgrade based on serving honorably would be inappropriate.

: ( ) . T he Applicant contends his discharge should be upgraded based on his “most impressive post-service accomplishments , ” which includes employment in a doctor’s office and his efforts to become a nurse practitioner . He submitted an unofficial transcript for the Board’s consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an

unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle , if applicable . The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct was not strong enough to support an upgrade.

The Applicant has requested an upgrade to “Honorable” in his discharge characterization. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. A “General (Under Honorable Conditions)” 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. The Board determined 2 NJP’s is not indicative of the conduct or performance expected of a U.S. Sailor seeking an “Honorable” discharge characterization. The awarded discharge characterization 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), 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 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 | ND0801885

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