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NAVY | DRB | 2010_Navy | ND1000204
Original file (ND1000204.rtf) Auto-classification: Denied

ex-EN3, USN
Current Discharge and Applicant’s Request
Application Received: 20091029
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       NEED S OF THE NAVY

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20040419 - 20041207     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041208     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080409      Highest Rank/Rate: EN2
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 86
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.84

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20080313 :      Article (Assault)
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 20060223 :       For retention despite allegations of fraudulent enlistment and failure to disclose adverse financial information on you r SF 86.

- 20071227 :       For failure to meet body composition assessment standards and failure to meet physical readiness test standards.










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 15560C), Change 16, effective 24 July 2006 until 28 May 2008,
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 .       Decisional issues : The Applicant seeks a change in his characterization of service at discharge to Honorable and a change in the narrative reason for separation to “Needs of the Navy . ” The Applicant’s request is based on the following identified issues of propriety and equity: (1) his command’s pre-conceived notion that he was guilty of spousal abuse; (2) his request for redress pursuant to Article 138 (b) of the UCMJ resulted in retaliation by nonjudicial punishment and separation; and (3), that evidence since his discharge proves his innocence and that he was the victim of his spouse’s mental illness.

Decision

Date : 20 1 1 0114    Location: Washington D.C . R epresentation :

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

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 three decisional issues for the NDRB’s consideration. Additionally, 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 was marred with two NAVPERS 1070/613 retention-counseling warning s and one non-judicial punishment (NJP) for of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault – domestic abuse ). The Applicant was married; his spouse was an enlisted sailor assigned to a separate ship at the same naval station.

The Applicant’s record of service and medical record s document that appropriately credentialed mental health care providers treated him beginning in March 2007. At that time, he was diagnosed with a panic disorder with mild Agoraphobia (non-disabling). He was recommend ed to receive continued counseling and trial with medication for this diagnosis. He was placed on full duty - without psychological limitation s - and received no recommendation for command consideration of separation; he was further determined not to be suicidal or homicidal or a threat to himself or others and was responsible for his actions. On 13 March 2008, the Applicant was found guilty at Captain’s Mast of violation of Article 128 (Assault) of the UCMJ based on allegations of domestic abuse (physical assault) . On 20 Mar ch 2008, the Applicant’s chronological record of medical care indicate s that his command requested a telephonic consult by the Portsmouth Naval Hospital Psychiatry department for administrative separation of the service member. On 20 March 2008, the Applicant was recommended for an expeditious separation based on a personality disorder of such severity a s to render the member incapable of serving adequately in military service, in any capacity, in accordance with the Naval Military Personnel Manual (MILPERSMAN), A rticle 1910-122.

 On 26 March 200 8 , the Applicant acknowledge d notification that he was being recommended for administrative separation. The Applicant was notified for separation due to Convenience of the Government – Personality Disorder in accordance with paragraph 1910-122 of the MILPERSMAN and that he was further being recommended to receive a General (Under Honorable Conditions) characterization of service at discharge. The NDRB reviewed the Applicant’s administrative discharge package; the Applicant waived his right to consult with qualified counsel, did not elect to submit a statement to the Separation Authority, and did not warrant an administrative discharge board hearing. On 23 April 2008, 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 detailed documentation regarding the medical diagnosis and discharge of his spouse, a certified copy of polygraph test examination results, and uncertified copies of his personal correspondence with his spouse’s command to refute the narrative reason for separation and characterization of his service at discharge.


: (Decisional) ( ) - RELIEF WARRANTED. 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’s overall contention is that he was the victim of false accusations , ultimately leading to an erroneous conviction of assault at a Captain’s Mast and a subsequent diagnosis of an explosive personality disorder with disturbances of emotion and conduct. These actions led to his involuntary separation and a characterization of service at discharge of General (Under Honorable Conditions). As a matter of record, after the Applicant’s administrative discharge, the service member’s spouse continued to sustain a variety of purported injuries and alleged abductions and attempted vehicular assault. On 21 May 2009, after an extended hospitalization for mental health treatment, the Applicant’s spouse was diagnosed with Factitious Disorder. The specific criteria for Factitious Disorder are intentionally producing or pretending to have physical or psychological symptoms or signs of illness with a motivation to assume the role of a sick person with the absence of external motives (as in malingering) to explain the behavior. The Applicant’s spouse was discharged subsequently from the service with an Honorable discharge for Personality Disorder.

Given the unique circumstances of the case, coupled with the diagnosis of the Applicant’s spouse with F a ctitious Disorder, and the fact that the Applicant’s diagnosis and discharge were predicated on the assumption that he was injuring his spouse, the NDRB determined that the discharge action was improper . As such, re lief is warranted .

In cases where no other reason for separation set forth in the MILPERSMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Since no other narrative reason for separation accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority.

Furthermore, as the basis for the characterization of service at separation was predicated on the presumed misconduct - which the NDRB determined not to be factual or the fault of the Applicant - the NDRB determined that the Applicant’s separation was inequitable. As such, relief is warranted under equity. 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. Based on the Applicant’s service record, in the absence of the purported misconduct (assault), the NDRB determined the Applicant’s service met the standard of acceptable conduct and performance for naval personnel and that an Honorable characterization of service was appropriate and warranted. Relief granted.

Summary : After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, additional supporting documentation submitted by the Applicant, and the d ischarge p rocess, the Board found the discharge was not proper and not equitable. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY .




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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