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NAVY | DRB | 2010_Navy | ND1001175
Original file (ND1001175.rtf) Auto-classification: Denied

ex-HA, USN
Current Discharge and Applicant’s Request
Application Received: 20100408
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)        20010426 - 20010514     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010515     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030117      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of Unauthorized Absence: 20021210 – 20021211 (1 day); 20030108 – 20030110 (2 days)
Period s of C onfinement :

NJP :

- 20030113 :       Article (Absent without leave), 2 specifications
         Specification 1: 0900, 20021210 to 1000, 20021211 , 1 day
         Specification 2: 0645, 20030108 to 0830, 20030110 , 2 days
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling : NFIR

Administrative Corrections to the Applicant’s DD 214

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

 “ 2002 DEC 10 – 2002 DEC 11 ; 2003 JAN 08 – 2003 JAN 10 ”

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), re-issued October 2002, effective 22 August 2002 until 19 June 2005, 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.       Nondecisional issues: The Applicant seeks an upgrade in characterization of his service in order facilitate reenlistment in the Navy.

2.       Decisional issues : The Applicant contends that his discharge characterization of service was inequitable , because it is based on a single isolated incident and the Applicant was young and impressionable at the time of his discharge.

Decision

Date: 20 1 1 0624             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 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 identif ied one issue related to the propriety or equity of his discharge for consideration by the NDRB; 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 completed 1 year and 7 months of his five-year contractual obligation. The Applicant’s record of service documents one non-judicial punishment for v iolation s of the Uniform Code of Military Justice (UCMJ) , specifically, violation of Article 86 (Absent without leave, 2 specifications of absenting himself from his unit wi thout proper authority). The Applicant’s record of service document s that appropriately credentialed mental health care providers diagnosed the Applica nt with a Personality Disorder with Borderline and Narcissistic Traits and P ost - Traumatic Stress Disorder (P TSD ) , in remission , on 04 December 2002 . The diagnostic impression further states that the Applicant demonstrates no active symptoms of PTSD, that his current intermittent anxiety is related to interpersonal difficulties, that he manifests behaviors and symptoms consistent with a personality disorder and that he is unlikely to improve in the military environment. The Staff Psychiatrist recommended that the Applicant be separated administratively in accordance with Article 1910-122 of the Naval Military Personnel Manual (MILPERSMAN) – Convenience of the Government, Personality Disorder; however, the Applicant should be counseled and afforded an opportunity to overcome his deficiencies in performance and conduct prior to any separation processing action for the personality disorder.

On 13 January 2003 , the Applicant was notified that he was being processed for administrative separation by his command. The Applicant was notified of the following reasons for discharge processing: Article 1910-122 (Convenience of the Government – Personality Disorder); Article 1910-138 (Misconduct – Minor Disciplinary Infractions) , and Article 1910-140 (Misconduct – Pattern of Misconduct). The preponderance of the evidence that supported this discharge action was the Applicant’s diagnosis of a P ersonality Disorder, his non-judicial punishment on 13 January 2003, and a Naval Criminal Investigative Service investigation that was opened on 19 August 2002 following an alleged assault against the Applicant, allegations of illegal drug use, inappropriate relationships, and fraternization. The Applicant had just completed Surgical Technician School and remained assigned to the Naval School of Health Sciences transient holding company, pending the results of the investigation. On 16 January 2003, the Applicant was discharged from the Naval Service with a n Under Other Than Honorable characterization of service based on a personality disorder of such severity as to render the member incapable of serving adequately in military service, in any capacity, in accordance with Article 1910-122 of the M ILPERSMAN.

The presumption of regularity of governmental affairs was applied by the NDRB in this case in the absence of a complete discharge package in the Applicant’s service record. The Applicant provided no additional documentation regarding his discharge to challenge or refute the narrative reason for separation or the characterization of his service at discharge.


Non-decisional Issues - The Applicant seeks an upgrade in characterization of his service in order facilitate reenlistment in the Navy. The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces ; r egulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge . A request for a waiver may however, be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.

: (Decisional) ( ) – RELIEF WARRANTED. The Applicant contends that his discharge characterization of service was inequitable because it is based on a single isolated incident and the Applicant was young and impressionable at the time of his discharge. 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.

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 administrative separation due to Convenience of the Government (Personality Disorder) and misconduct; in this case, the Separation Authority determined that Personality Disorder was the more appropriate narrative reason for discharge. The Applicant was diagnosed on 04 December 2002 and was afforded an opportunity to correct his deficiencies in performance and conduct; however, he subsequently violated the UCMJ with an unauthorized absence on 10 December and 11 December 2002 and again from 08-10 January 2003. He received non-judicial punishment on 13 January and was processed for separation. 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 based on propriety is not warranted.

Equity - The Applicant contends that his discharge characterization of service was inequitable , because it is based on a single isolated incident and the Applicant was young and impressionable at the time of his discharge. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. While the Applicant may feel his youth or immaturity was the underlying cause of his misconduct, he provided no documentation or explanation in support of this claim. The NDRB recognizes that many of our service members are young at the time they enlist for service but still manage to serve honorably. While it is understood that some members may be less mature than others may, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.

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 of duty outweighed the positive aspects of his record. However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.

Since the Applicant was separated for a Personality Disorder and not for adverse conduct, unsatisfactory performance , or separation in lieu of court-martial, the NDRB determined the member’s service ha d been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of his record. The NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge, but did discern an inequity in the characterization of the Applicant’s service. The NDRB voted unanimously to upgrade the characterization of the discharge to General (Under Honorable Conditions) , but the narrative reason for the discharge, Personality Disorder, shall remain as issued.

S ummary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, additional supporting documentation, and the discharge process, the NDRB determined that the discharge was proper, but no t equitable. Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) , but the narrative reason for separation shall remain PERSONALITY DISORDER. 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 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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