Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901553

Original file (ND0901553.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20090512

Characterization of Service Received:

Narrative Reason for Discharge: (OTHER)

Authority for Discharge: MILPERSMAN []

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: JDM EARLY RELEASE/OTHER

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20050629 - 20060619     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060620     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060817      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: NA Behavior: NA     OTA: NA
Awards and Decorations ( per DD 214):      NONE
Periods of UA /C ONF :

NJP : SCM: SPCM:

CC:

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

“ UNCHARACTERIZED ”

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL , PISTOL MARKSMAN RIBBON ”

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 /To Representat ion :          From /To Congress m ember :
Oth er Documentation :

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

Applicant’s Issues

1.       Re questing a change in reentry (RE) code from RE-4 to RE-3.
2.       D ischarge was improper because the reason for separation was totally untrue and inaccurate.

Decision

Date: 20 10 0225             Location: Washington D.C .        R epresentation :

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service reflected no misconduct that resulted in nonjudicial pun ishment (NJP) or court-martial. On 2 August 2006, a clinical psychologist (Naval Hospital, Great Lakes, IL) diagnosed the Applicant with anxiety disorder, not otherwise specified (NOS), existed prior to service (EPTS); conduct disorder, childhood onset, EPTS; and post-traumatic stress disorder, by history, resolved. Based on the psychologist’s evaluation, the Applicant’s command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Co nvening Authority (GCMA) review .

: (Nondecisional) The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a reentry code.

: (Decisional) ( ) . The Applicant contends his discharge was impr oper because information provide d at his separation was inaccurate and totally untrue , and he wants his narrative reason for separation changed to early release/ other and correspondin g separation code changed to JDM. The Applicant provided several pages of docume ntation to support his contention that he inform ed the recruiter and military entrance processing station (MEPS) of his pre-service condition. On his medical prescreen of medical history report (DD Form 2807-2, Oct 2003) dated 11 June 2005 , the Applicant had marked “No” in block 2.a. (16) Seen a psychiatrist, psychologist, counselor or other professional for any reason (inpatient or outpatient) including counseling or treatment for school, adjustment, family, marriage or any other problem, to include depression, or treatment for alcohol, drug or substance abuse (6)(2)” and block 2.a. (72) Taken medication, drugs, or any substance to improve attention, behavior, or physical performance (2)(1)(6).” On his report of medical history (DD Form 2807-1, Oct 2003) dated 13 June 2005 , the Applicant marked “Yes” in block 17.e. Received counseling of any type, and block 17.g. Been evaluated or treated for a mental condition (If yes, fully explain in Item 29 below); the examining doctor did document the Applicant’s counseling in blocks 29 and 30.a. On the Applicant’s report of medical examination (DD Form 2808, Jan 2003) dated 13 June 2005, the doctor noted in block 77, summary of defects and diagnoses, “#40 – Hx of counseling” and also requested in block 78, recommendations, a need for all counseling records; the doctor noted the Applicant was “Good to go!” on 28 June 2005. The NDRB determined the Applicant had disclosed his pre-service counseling at his enlistment medical e xamination and to his recruiter. The NDRB opines any use of psychotropic medication would have been noted in the counseling sessions. The NDRB had documentation that the Applicant had not taken any psychotropic medication since 12 March 1998, more than eight years prior to his e nlistment . After a careful review of the Applicant's post-service documentation, official service and medical records, and taking into consideration the facts and circumstances unique to this case, the NDRB discerned an impropriety in the discharge action , but no inequity in the characterization of the Applicant’s service. Since the Applicant was also notified for erroneous enlistment, the NDRB determined that erroneous enlistment (other) is the appropriate narrative reason for separation. ( For the Applicant’s information, the NDRB found no separation code JDM or a narrative reason of early release/other. )

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to ERRONEOUS ENTRY (OTHER) .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until 16 May 2008, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

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 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | 2009_Navy | ND0901553

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