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NAVY | DRB | 2010_Navy | ND1000566
Original file (ND1000566.rtf) Auto-classification: Denied

ex-FR, USN

Current Discharge and Applicant’s Request
Application Received: 20091209
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)        20080131 - 20080710     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090114      Highest Rank/Rate: FR
Length of Service : Y ear ( s ) M onth ( s ) 3 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: NA   Behavior: NA     OTA: NA

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : NJP : S CM : SPCM: C C :

Retention Warning Counseling :

- 20080801 :       For an undisclosed pre-service charge of one Chart “C” offense: driving under the influence.

- 20090106 :       For having a medical condition, not considered to be a disability: Bilateral Varicocele. While your condition could be considered a disqualifying factor in determining your suitability for further naval service, factors in your specific case have led to the determination you should not be processed for separation at this time.

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 :        





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

Applicant’s Issues

 1.        The Applicant contends his discharge was inequitable , because the Navy was aware of his condition upon enlistment , which later caused his separation.

Decision

Date : 20 1 1 0217             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 discharg e 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 NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment (NJP) or court-martial. Based on the diagnosis and recommendation of competent medical authority, the Applicant ’s command administratively processed for separation due to a medical condition not considered to be a disability. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement. The Applicant was not entitled to an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because the Navy was aware of his condition upon enlistment , which later c a used his separation. The record shows the Navy was aware of the Applicant’s medical condition upon enlistment and issued an enlistment waiver. The Applicant’s medical condition caused him trouble during recruit training, and he was recommended for administrative separation due to this condition on 14 November 2008, with a second opinion on 16 Dec ember 2008. A third medical opinion and recommendation for separation was given by medical authority on 6 Jan uary 2009. While the Applicant had disclosed the medical condition and received a waiver, his medical condition still interfered with his military training to the point competent medical authority found separation was justified for a condition , not a disability.

The record shows the Applicant had served for exactly 180 days when notified of separation on 7 Jan uary 2009. Since the Applicant had not served more than 180 days when notified of separation, he was found to be in an entry level status. The Naval Military Personnel Manual directs members in an entry level status to receive an Uncharacterized characterization of service except in circumstances where service has b een so meritorious as to warrant an Honorable.

In the course of examining the Applicant ’s issue, the NDRB detected impropriety in his separation proceedings. Regulations state command - initiated request s for involuntary separation processing may not be initiated until the service member has been notified formally with a NAVPERS 1070/613 ( P age 13) administrative remark s concerning performance deficiencies related to the physical condition and advised of medical resources that may assist in the member’s retention. The commanding officer must provide the member reasonable time to overcome deficiencies as reflected in appropriate counseling or personnel records.

The Applicant received a P age 13 warning on 6 Jan uary 2009 and was notified of separation on 7 Jan uary 2009. The record clearly shows the Applicant was not given a reasonable amount of time to overcome the deficiencies noted in the 6 Jan uary counseling prior to notification of separation . The NDRB determined the Applicant should have been further retained in order to be provided a reasonable amount of time to correct his deficiencies following his P age 13 counseling. Because the Applicant was notified at 180 days of service, any retention clearly would have placed him over the 180 day mark , in which case he would no longer have been in an entry level status. Applicable regulations dictate characterization shall be Honorable unless a General (Under Honorable Conditions) is warranted for a condition, not a disability . The Applicant had no misconduct or other entries in the record to warrant a General (Under Honorable Conditions) characterization. Therefore, the NDRB found the Applicant’s characterization of service should be changed to Honorable in the interest of propriety and equity .

Additionally, the NDRB found that because the Applicant’s physical condition was not evaluated following a reasonable amount of time after receiving a P age 13 counseling, the Applicant could not technically be separated for having a condition , not a disability. Therefore, the NDRB determined the Applicant’s narrative reason for discharge should be changed to Secretarial Authority.

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 re ason for separation shall change to .

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

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), change 24 effective 28 July 2008 until Present, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

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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