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NAVY | DRB | 2010_Navy | ND1001107
Original file (ND1001107.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20100323
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)        20060922 - 20070128     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070129     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080530      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 57
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20080411 :       For your diagnosis by medical authorities as having lumbago. Your potential for future active naval service is considered inadequate. You are further advised that this diagnosed condition is interfering in the performance of your duties as evidenced by constant trips to sick call and time away from classes.

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 27 July 2008,
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 .


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

Applicant’s Issues

 1.        Nondecisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in order to be eligibl e for VA educational benefits.

2.       Decisional issues : The Applicant did not provide any specific issues for the NDRB’s consideration.

Decision

Date: 2011 0513            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 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 did not identify any decisional issue regarding propriety or equity of his discharge for the NDRB’s consideration; however, the NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the Applicant’s discharge met the pertinent standards of equity and propriety. The Applicant did not provide the NDRB with any documentation for consideration or rebuttal to the NDRB’s presumption of regul arity in governmental affairs.

The Applicant enlisted at age 28 , without any moral or medical waiver s to enlistment standards on a 4-year enlistment with a 12 -month extension. He enlisted with an enlistment guarantee of Aviation Structural Mechanic School. The Applicant completed basic recruit training and was selected for and assigned to the U.S . Nav y Ceremonial Guard, Washington , DC . He was subsequently assigned to Naval Amphibious Base, Little Creek , V A and then on to the Naval Air Technical Training Center for training in his guaranteed rating. The Applicant’s record of service includes one NAVPERS 1070/613 retention-counseling warning with no judicial or nonjudicial punishments for violation s of the Uniform Code of Military Justice .

The NDRB reviewed the Applicant’s administrative separation package to determine whether the Applicant elected his right to consult with a qualified counsel or to submit a written statement to the separation authority. The Applicant was notified of the command’s intent to separate him involuntarily, by reason of Convenience of the Government, Condition Not a Disability pursuant to a medical diagnosis of Lumbago , which would likely continue with deteriorating performance, conduct, reliability, and judgment. The command determined that the Applicant had no potential for future useful naval service; therefore, separation was warranted. On 05 May 2008, t he Applicant was notified of the Command’s intent to recommend his administrative separation from the Naval Service. He was advised that the least favorable characterization of his service he could receive at discharge was General (Under Honorable Conditions) and that his Commander was recommend ing that he receive a General (Under Honorable Conditions) characterization of his service upon discharge. The Applicant was advised of this, and his rights regarding separation , in writing; he elected to waive his right to consult with qualified legal counsel and elected to not submit written matters for the Separation Authorit y ’ s consideration. On 30 May, the Applicant was involuntarily separated from the Naval Service pursuant to Article 1910-120 of the Naval Military Personnel Manual (MILPERSMAN) – Convenience of the Government, Condition N ot a Disability; he was assigned a General (Under Honorable Conditions) characterization of his service and a reentry code of RE-3G (eligible for reenlistment except for medical disqualifying factor).

(Nondecisional Issue) - The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in order to be eligible for VA educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, 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 solely to a determination of the propriety and the equity of a discharge.

( Board Review ) - ( ) : . The Applicant did not identify any decisional issues to the NDRB; however, the Board completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s service record documents evaluation by appropriately credentialed health care providers after a motor vehicle accident with re-occurring back pain beginning with his assignment to the Navy Ceremonial Unit. Moreover, the Applicant’s service records document a period of 6-month ’ s limited duty and a change in billet assignment due to this re-occurring problem. On 18 January, 03 March, and 20 March 2008, medical health care providers recommended separation for Lumbago – a condition not a disability, which was not resolving, and would likely continue to deteriorate and prevent satisfactory performance of his duties. T he separation authority for the Applicant’s discharge was Article 1910-12 0 of the MILPERSMAN, which addresses physical or mental conditions that impair a member ’ s performance, but do not amount to a physical disability. Though these conditions do not amount to a disability, they affect the member’s ability to serve, or the potential for continued naval service. Based on the appropriately credentialed health care provider’s diagnosis, coupled with the formal retention counseling warning , the NDRB determined the Applicant met the requirements for separation by reason of C onvenience of the G overnment , C ondition N ot a D isability due to a physical or mental condition (Lumbago) . The NDRB determined that the separation was proper as issued and no change to the narrative reason for separation is warranted; relief based on issues of propriety is denied.

Based on his physical condition, the NDRB determined the Applicant met the requirements for separation by reason of convenience of the government – physical or mental conditions. However, the characterization for this reason for separation is Honorable , unless an Uncharacterized or General (Under Honorable Conditions) characterization is warranted. The Applicant served more than 180 days and was not eligible for an Uncharacterized discharge. 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. The Applicant’s service record does not contain any negative information or misconduct and, in fact, documents selection to and satisfactory performance of duties with the Navy Ceremonial Unit. Furthermore, the NDRB found no evidence in his medical or service records indicating that the Applicant wanted to leave the Navy.

After a thorough review of the available records, supporting documents, facts, elements of the discharge, and the medical circumstances unique to this case , t he NDRB determined that the Applicant’s conduct of record was both honest and faithful and did meet the standards of acceptable conduct and performance for naval personnel. T he NDRB concluded that there was an inequity in the Applicant’s discharge action, is convinced that this was prejudicial to the Applicant, and therefore, an inequity in the characterization did occur. By a vote of 5-0, the NDRB determined that an upgrade to an Honorable characterization of service is appropriate; as such, relief based on equity is warranted. H owever, the narrative reason for discharge, Condition N ot a D isability , was equitable and shall remain as issued.

 Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall ; however, the narrative reason for separation shall remain CONDITION NOT A DISABILITY. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is 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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