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NAVY | DRB | 2010_Navy | ND1000179

Original file (ND1000179.rtf) Auto-classification: Denied

ex-ABFAA, USN

Current Discharge and Applicant’s Request

Application Received: 20091020

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)        20051208 - 20060911     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060912     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090925      Highest Rank/Rate: AB F AA
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.2 ( 5 )      Behavior: 2.4 ( 5 )        OTA: 3.00
Awards and Decorations ( per DD 214):      Rifle Pistol NMC

Periods of UA /C ONF :

NJP :
- 20090810 :       Article (Disrespect toward a Warrant Officer, Non-Commissioned, or Petty Officer)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20061023 :       For your disclosure to Recruit Quality Assurance Team (RQAT) at the Moment of Truth regarding one Chart ”A” offense: Speeding. Rochester, NY Police Department faxed over documents stating that you had paid all of your tickets. The information regarding the above listed offense was based on your Moment of Truth statement of 13 September 2006. There are no further violation s pending.

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law
A. Naval Military Personnel Manual, (NAVPERS 15560D), Change 28, effective 21 August 2009 until Present, Article 1910-122, Separation By Reason of Convenience of the Government - Personality Disorder(s).

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 . The Applicant contends that his discharge characterization of service was inequitable because he was discharged based on his P ersonality Disorder and was not allowed to comp l ete his treatment program and his p sychiatrist threatened him with charges for malingering.

Decision

Date: 20110106 Location: Washington D.C. Representation:

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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified one decisional issue for the NDRB’s consideration. The NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety. The Applicant’s record of service is marred with one NAVPERS 1070/613 retention-counseling warning and one non-judicial punishment (NJP) for of the Uniform Code of Military Justice (UCMJ): Specifically, Article 91 (Disrespect toward a Warrant Officer, Noncommissioned Officer, or Petty Officer).

The Applicant’s record of service and medical record document that he was seen emergently on both 09 July 2009 and 27 July 2009 for suicidal ideations related to personal issues and the military environment. On 10 August 2009, the Applicant was seen for a suicidal gesture after overdosing on a bottle of weight-loss pills. The Applicant was retained overnight for observation. The ship ’s psychologist who treated the Applicant saw him on multiple occasions. The Applicant was diagnosed with an Axis I Adjustment Disorder with Mixed Disturbances of Emotions and Conduct, Attention Deficit D isorder , and Hyperactivity D isorder, combined type. Moreover, the appropriately credentialed mental health care provider further documented a n Axis II - Borderline Personality Disorder as the Primary Diagnosis . The Psychologist further stated that the Applicant does not have a severe mental disorder and is considered not to be mentally disordered; however, the Applicant manifests a history of personality characteristics, chronic suicidal ideations, and a history of impulsive risk taking behaviors, a lack of adaptability, mood labiality, a history of self-injurious behaviors , and poorly controlled anger. He was determined to not be imminently suicidal or homicidal, but at a much higher risk of attempting to harm himself or others if retained on active duty - through either miscalculation or purposeful actions. The Applicant was determined to be fit for separation and responsible for h is actions with continued follow-up treatment by the Mental Health C are providers.

On 26 August 2009 , the Applicant was notified that he was being administratively processed for separation. The Applicant was dual notified for separation due to Convenience of the Government – Personality Disorder in accordance with paragraph 1910-122 of the Naval Military P ersonnel Manual (MILPERSMAN) and Misconduct – Commission of a Serious Offense (1910-142) . The Applicant was further advised that t he primary reason for discharge was Personality Disorder and that he was being recommended to receive a General (Under Honorable Conditions) characterization of service at discharge. The NDRB presumed regularity in the conduct of governmental affairs in that the Applicant ’ s service record did not contain a complete administrative separation package to verify that he was afforded the opportunity to exercise h is rights as required by the MILPERSMAN . On 02 September 200 9 , the Separation Authority directed the Applicant be discharged by reason of Convenience of the Government – Personality Disorder pursuant to the authority of the MILPERSMAN ( 1910-122 ) with a General (Under Honorable Conditions) characterization of service.

Besides his statement on the DD Form 293, the Applicant provided neither documentation to rebut the government’s presumption of regularity in the conduct of governmental affairs nor any documentation refuting the narrative reason for separation or characterization of service at discharge.
: (Decisional) ( ) – RELIEF NOT WARRANTED. The Applicant contends that his discharge characterization of service was inequitable , because he was discharged based on his P ersonality Disorder and was not allowed to compete his treatment program and his p sychiatrist threatened him with charges for malingering.

(Propriety) Pursuant to paragraph 1910-122 of the MILPERSMAN, members may be processed for separation based on a Mental Health Care Professional's clinical diagnosis of a personality disorder when that disorder is so severe that one's ability to function effectively and perform their duties is significantly impaired and the individual poses a threat to the safety or well being of themselves or others. Separation for personality disorder is not normally appropriate when separation is warranted for any other reason (e. g., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant met the requirements for processing by reason of Convenience of the Government – Personality Disorde r and for documented Misconduct. Based on the Applicant ’ s documented suicidal ideations and gestures, the Separation Authority determined that Personality Disorder was the more appropriate narrative reason for discharge. Furthermore, the diagnosing Psychologist clearly specified that the Applicant did not have a severe mental disorder and was considered not to be mentally disordered; as such, administrative discharge vice a medical evaluation board with disability is proper and was warranted. As such, the NDRB determined no impropriety in the discharge action; the proper narrative reason for separation from the Naval service was Convenience of the Government – Personality Disorder . Accordingly, relief is not warranted.

(Equity) Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. A review of the Applicant’s official service record reveals a retention warning and the commission of a serious military offense (Article 91) - punishable by punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Additionally, the Applicant ’ s medical record documents a continued insistence for separation from the service with threats to s elf - harm until separated . The Applicant agreed to contract with the Psychologist not to harm himself , or others , after being advised that he was being recommended for separation.

A General (Under Honorable Conditions) characterization of service 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. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant’s service was honest and faithful, but significant negative aspects of h is conduct during his service outweighed the positive aspects of h is service record; as such, the command was justified in awarding the Applicant a General (Under Honorable Conditions) discharge. The Board determined an upgrade to an Honorable characterization of service would be inappropriate. Relief denied

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was both proper and equitable . Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .

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

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 | 2010_Navy | ND1000179

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