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NAVY | DRB | 2010_Navy | ND1000616

Original file (ND1000616.rtf) Auto-classification: Denied

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20091215

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)        20030404 - 20040119     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040120     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060401      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 79
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.67 (1)

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20040506 :      Article (Absence from appointed place of duty)
         Article (Failure to obey regulation, unauthorized entry through fire exit door and window), 20040425
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 20050112 :       For alcohol abuse (1st incident) - underage consumption of alcohol , and failure to obey Combat Center Order 1720.1G, Sale, Possession and Consumptio n of A lcoholic B everages.

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS ) " ”
         “ PERSONALITY DISORDER ”

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:          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 11, effective 20 June 2005 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. Applicant contends his discharge was improper and inequitable based on pre-separation discussion and recommendations from the U.S. Navy p sychiatrist who evaluated him for obsessive compulsive disorder (OCD) .

Decision

Date : 20 1 1 01 28 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 identif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning on 12 Jan 2005 for alcohol abuse (underage drinking) and failure to obey a Combat Center Order regarding the possession, sale, and consumption of alcoholic beverages . Additionally, the record contained for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, absent from appointed place of duty for 1.5 hrs , date and place NFIR) and Article 92 ( Failure to obey order, regulation, unauthorized entry through fire exit door and window, 25 Apr 2004). The Applicant’s service and medical records are incomplete, but the Commanding Officer’s Notification of Administrative Separation Letter to Commander, Navy Personnel Command (dated 27 Feb 2006) mentions that the Applicant was notified of pending administrative separation, on 23 Feb 2006, for a General (Under Honorable Conditions) discharge due to Convenience of the Government - Personality Disorder. The Commanding Officer further states “I strongly concur with LCDR B’s (U.S. Navy p sychiatrist) recommendation for the administrative separation of HN “ K ” (the Applicant). His documented personality disorder has negatively affected his daily performance, demonstrated he is a danger to himself and others, and causes me to conclude that he has no potential for further useful Naval Service . ” Based on th e aforementioned information, the Applicant’s commanding officer had concluded that the Applicant should be separated from the Navy due to Personality Disorder, and that he rated a General (Under Honorable Conditions) discharge in accordance with the Naval Military Personnel Manual (MILPERSMAN) section 1910. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable based on pre-separation discussion and recommendations from the U.S. Navy p sychiatrist who evaluated him for obsessive compulsive disorder. In his Application for Review of Discharge, the Applicant c laims he was receiving therapy for OCD and that his d octor recommended that he separate from the Navy , because it was aggravating his OCD. He further states that since the d octor guaranteed that the proposed separation would be Honorable due to a pre-existing medical condition, he decided to go ahead with the separat ion .

Though the records are incomplete, it is clear from the Commanding Officer’s Notification of Administrative Separation Letter to Navy Personnel Command that the Applicant had been evaluated by a mental health professional , whose 30 Dec 2005 Mental Health Evaluation Report was provided as an enclosure to his letter. Moreover, the Commanding Officer made the following comments mentioning that the Applicant was notified in writing of pending administrative separation, on 23 Feb 2006, for a General (Under Honorable Conditions) discharge due to Convenience of the Government - Personality Disorder. The Commanding Officer further stated , “I strongly concur with LCDR B’s (U.S. Navy Psychiatrist) recommendation for the administrative separation of HN “K” (the Applicant). His documented personality disorder has negatively affected his daily performance, demonstrated he is a danger to himself and others, and causes me to conclude that he has no potential for further

useful Naval Service . ” Based on the aforementioned information, the Bo ard found that the Applicant’s C ommanding O fficer was acting within his authority to conclud e that the Applicant should be separated from the Navy due to Personality Disorder, and that he rated a General (Under Honorable Conditions) discharge in accordance with MILPERSMAN section 1910-122. In reviewing discharges, the Board 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 provided no documentary evidence to rebut this presumption or otherwise show that impropriety or inequity existed based on the orders and directives in effect at the time of his separation. Therefore, the Board determined this issue was without merit and did not provide a basis for which relief could be granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and administrative separation p rocess, the Board found Therefore, the awarded characterization of service shall 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 directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, 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 | ND1000616

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