Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902308

Original file (ND0902308.rtf) Auto-classification: Denied

ex-AA, USN

Current Discharge and Applicant’s Request

Application Received: 20090817

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       ENTRY LEVEL SEPARATION

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20030519 - 20030618     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030619     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030714      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         NFIR
Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP : S CM : SPCM:

C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

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

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. Wants to reenlist in the military.
2. During the recruitment process she was instructed not to say anything about her attention deficit disorder (ADD) diagnosis.
3. Discharge improper because her pre-service medical condition of ADD has been under control.
4 . Post-service conduct warrants consideration.
5. Wants to change the narrative reason for separation to “Entry Level Separation.”

Decision

Date: 20 10 0826 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

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 included no NAVPERS 1070/613 (Page 13) warnings or misconduct that resulted in nonjudicial punishment or court-martial. While in recruit training, the Recruit Mental Health psychiatrist diagnosed the Applicant with attention-deficit/hyperactivity disorder (ADHD) , combined type, 314.01, existed prior to entry, on 23 June 2003. During her mental health evaluation, the Applicant revealed she had prior psychiatric treatment and a psychotropic medication history, which she did not reveal on her enlistment Report of Medical History dated 30 April 2003. Based on the Applicant’s failure to disclose her pre-service psychiatric treatment, her command administratively processed her for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived her rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Co nvening Authority review .

Issue 1: (Nondecisional) The Applicant wants to reenlist in the military. 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. Only the Board for Correction of Naval Records 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.

Issue 2 : (Decisional) ( ) . The Applicant contends during the recruitment process she was instructed not to say anything about her ADD diagnosis. The Applicant signed her Report of Medical History (page 3 of 4) dated 30 April 2003, that included the following statement, “I certify the information on this form is true and complete to the best of my knowledge and belief, and no person has advised me to conceal or falsify any information about my physical or mental history.” The NDRB determined this issue is without merit.

Issue 3: (Decisional) ( ) . The Applicant contends her discharge was improper because her pre-service medical condition of ADD has been under control . As noted above, the Applicant failed to reveal her pre-service psychiatric treatment on her enlistment Report of Medical History dated 30 April 2003. Specifically, she marked, “NO” in block 17, HAVE YOU EVER HAD OR DO YOU NOW HAVE: e. Received counseling of any type and g. Been evaluated or treated for a mental condition (if yes, fully explain in Item 29 below). After reviewing her civilian medical records, the NDRB also found the Applicant did not reveal her allergic rhinitis (hay fever) and her swollen or painful joint/knee trouble. (The NDRB notes she had arthroscopy knee surgery approximately nine months after her discharge.) The Applicant was in the Navy for only 26 days and was in an entry level status (i.e., within the first 180 days of continuous active duty on the date of notification of administrative separation processing) . She was involuntarily separated for fraudulent entry and did not warrant an Honorable characterization. The NDRB determined the Applica nt’s discharge was not imprope r .

Issue 4: (Decisional) ( ) . The Applicant contends her post-service conduct warrants consideration. She stated that she completed her Associates degree in applied science and is a surgical technologist. The NDRB considers 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. Besides her DD Form 293 and civilian medical records, she only provided clinical evaluation forms. The NDRB determined t he Applicant failed to provide sufficient documentation to form a basis of relief. She could have provided documentation that included post-service letters of reference, education, employment, and special certifications. The Applicant should be aware submission of these items alone does not guarantee an upgrade as each discharge is reviewed by the NDRB on a case-by-case basis.

Issue 5: (Decisional) ( ) PARTIAL . The Applicant w ants her narrative reason for separation changed to “Entry Level Separation.” The Applicant was discharged with an Uncharcterized character of service because she was in an entry level status (less than 180 days of service). However, the Applicant was also notified for administrative separation processing for defective enlistment and induction due to erroneous enlistment as evidenced by ADHD. After a thorough review of the Applican t’s service and medical records, the age at enlistment, and taking into consideration the facts unique to this case, the NDRB, by majority rule, determined the enlistment would not have occurred if relevant facts had been known by the Department of the Navy and that Erroneous Enlistment is a more appropriate narrative reason for separation. For the information of the Applicant, E rroneous Enlistment is not viewed by the D epartment of the Navy as an adverse narrative reason for separation.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and 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 .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her 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), re-issued October 2002, effective 22 August 2002 until 2 May 2005, 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 | ND0902308

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