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NAVY | DRB | 2010_Navy | ND1001194
Original file (ND1001194.rtf) Auto-classification: Denied

ex-IT3, USN
Current Discharge and Applicant’s Request
Application Received: 20100315
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)        20021205 - 20030127     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030128     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060209      Highest Rank/Rate: IT3
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 65
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 2.92

Awards and Decorations ( per DD 214): ,

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :      Retention Warning Counseling :

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 25 May 2005 until 23 July 2006,
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.       The Applicant contends that he was separated involuntarily due to a medical condition and that his service was honorable throughout his enlistment; as such, he warrants consideration for an upgrade in the characterization of his service at discharge to Honorable.

Decision

Date: 20 1 1 0526             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 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 identified one decisional issue for the Board’s consideration. In addition to reviewing the Applicant’s stated issue, 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 that was not already included in his official military file.

The Applicant enlisted at age 18 , without any waiver s, on a 4-year enlistment contract with a 24-month extension agreement . The Applicant’s record of service includes no NAVPERS 1070/613 retention-counseling warning s and no judicial or nonjudicial punishment 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 sta tement to the S eparation A uthority. 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 Airsickness, Motion Sickness, and/or Travel Sickness . The Applicant’s medical and service record s document the condition, to include a neurological evaluation and a psychiatric evaluation - both of which were negative for any underlying psychological or neurological factors. The Applicant ’ s service and medical records further document that the Applicant was disqualified from flight duty status resultant from multiple incidents of airsickness with nausea, vomiting, and syncope; he requested to remain in service and was assigned to ship duty not involving flight duty. While aboard the USS LABOON, the problems continued , to include having to be medically evacuated from the ship. Given a medical diagnosis of motion sickness , with no underlying neurological or psychological factors, t he command determined that the Applicant had no potential for fu rther naval service. The Applicant was notified that the least favorable characterization of his service at discharge was General (Under Honorable Conditions) . 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.
(Decisional Issue) ( ) . The Applicant contends that he was separated involuntarily due to a medical condition, not a disability and that his service was honorable throughout his enlistment; as such, he warrants consideration for an upgrade in the characterization of his service at discharge to Honorable. The Applicant was separated involuntarily pursuant to Convenience of the Government - Condition N ot a Disability; he was not discharged for misconduct based on a single incident, a pattern of misconduct, or minor disciplinary infractions. The S eparation A uthority for the Applicant’s discharge was Article 1910-12 0 of the MILPERSMAN, which addresses physical or behavioral conditions that impair a member ’ s performance, but do not amount to a physical disability. Though these conditions do not amount to a disability (and as such, do not warrant a medical discharge) , they do affect the member’s ability to serve or the potential for continued naval service. Based on the appropriately credentialed medical he alth care provider’s diagnosis, supported by neurological and psychological evaluations , 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. The NDRB determined that the separation was proper as issued and no change to the narrative reason for separation is warranted; relief based on is sues of propriety is denied.

In accordance with the guidance provided for separation for a Condition N ot a Disability, an Honorable characterization of service is directed, unless a General (Under Honorable Conditions) characterization of service is warranted. 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. A particular circumstance of interest was the lack of any negative information in the Applicant ’ s service record that would prevent a characterization of service as H onorable. Additionally, after being determined to be disqualified for all duties involving flight by the Naval Operational Medicine Institute, the Applicant requested to remain in service and change rate in order to continue his service. The NDRB reviewed all of the available records, supporting documents, facts, elements of the discharge, and the medical circumstances unique to this case. The 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. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB concluded that there was an inequity in the Applicant’s discharge action. By a vote of 5-0, the NDRB determined that an upgrade is appropriate; as such, relief based on equity is warranted.

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 15 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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