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NAVY | DRB | 2009_Navy | ND0900502
Original file (ND0900502.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20081224
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 UNSATISFACTORY PERFORMANCE

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

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19960131 - 19960221     Active: 

Period of Service Under Review:
 Date of Enlistment: 19960222      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 19970815       Highest Rank/Rate: FA
Length of Service: Year(s) Month(s) 24 D ay(s)
Education Level:         AFQT: 36
Evaluation Marks:        Performance: 1.3 ( 3 )     Behavior: 2.0 ( 3 )        OTA: 1.77

Awards and Decorations (per DD 214):     NDSM SSDR
Periods of UA/CONF:

NJP:
- 19970602:      Article 92 (Dereliction of duty)
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 19970602 :      For your inability to perform responsibilities during Casualty Control Drills; removal of Engine Room Messenger Qualifications; unsatisfactory completion of assigned tasking; being delinquent in qualifying as Engineering Cold Iron Watch and the recent non-judicial punishment involving a violation of the UCMJ, Article 92 (Dereliction of duty) for negligently failing to remain awake on watch as the port shaft alley spring bearing watch.

Administrative Corrections to the Applicant’s DD 214

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

         “ MILPERSMAN 3630300 ”
        
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:

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until
11 December 1997, Article 3630300, SEPARATION OF ENLISTED PERSONNEL BY REASON OF UNSATISFACTORY PERFORMANCE.
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. Seeking VA benefits.
2. Began complaining of anxiety attacks and paranoia in basic training and was ignored and therefore not treated.

Decision

Date: 20090326            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall UNSATISFACTORY PERFORMANCE.
Discussion

 : The Applicant is seeking an upgrade in order to obtain VA benefits. 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 while in basic training he complained of anxiety attacks and paranoia and was allegedly told he was just trying to get out of work. The Applicant states after being discharged from active duty he was diagnosed with general anxiety, schizodial personality and attention deficit disorder. He is opined this condition existed while he was on active duty and had it been properly diagnosed he could have received proper treatment.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and/or characterization of service if such a change is warranted. 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 service was marred by one retention warning for inability to perform responsibilities during drills, removal of qualifications, unsatisfactory completion of task, delinquent in qualifying for watch, etc. and one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Dereliction of duty for failing to remain awake while on watch). Based on the foregoing evidence, he was subsequently discharged for unsatisfactory performance as noted on the DD Form 214.

In response to the Applicant’s assertion he complained of anxiety attacks and was ignored, the government enjoys a presumption of regularity in the conduct of its affairs. The presumption of regularity was applied in this case due to the absence of medical records. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence to support the contention the Navy ignored and failed to properly diagnose his anxiety attacks or other issues. Additionally, he provided no medical documentation pertaining to his current mental state or diagnosis of having general anxiety, schizodial personality and attention deficit disorder. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

The Applicant has requested an upgrade to his discharge characterization to “Honorable”. 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. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet established standards expected for U.S. Sailor’s and is not indicative of members in receipt of an “Honorable” discharge. The Board determined the awarded discharge characterization was appropriate and an up grade would be inappropriate.



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