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NAVY | DRB | 2010_Navy | ND1001295
Original file (ND1001295.rtf) Auto-classification: Denied

ex-FN, USN
Current Discharge and Applicant’s Request
Application Received: 20100427
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       CONDITION NOT A DISABILITY

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20070726 - 20071218     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20071219     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081103      Highest Rank/Rate: FN
Length of Service : Y ear ( s ) M onth ( s ) 15 D a y ( s )
Education Level:        AFQT: 98
Evaluation M arks:         Performance: N/A          Behavior: N/A   OTA: N/A

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20081001 :      For failure to obey the rules and regulations at Recruit Training Command to wit: unauthorized possession of a cell phone and MP3 player while assigned to Temporary Holding Unit.

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL ”
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11 effective 20 June 2005 until Present,
Article 1910-130, Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.
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 w ants the Reentry (RE) code changed from RE-4 to RE-3G.
 2.       Applicant w ants the n arrative r eason changed to C ondition , N ot a D isability.
3.       Applicant contends his r ecord of service warrants consideration for his discharge to be upgraded to H onorable.

Decision

Date: 20 1 1 0616             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 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) warning . It did not include any non-judicial punishments or trials by court-martial for violation of the Uniform Code of Military Justice . The Applicant tested positive for microscopic hematuria (blood in urine) while in recruit training . Competent medical authority subsequently diagnosed him with a kidney disease. Had this information been known by the Navy, it is unlikely that t he Applicant would have been allowed to enlist. Based on an error committed by the Navy, and no fraudulent intent on the part of the Applicant, his command administratively processed for separation for erroneous entry . The NDRB did not have the Applicant’s administrative separation package to determine if he waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Non - decisional) The Applicant contends that his RE code should be changed from RE-4 to RE-3G, a condition (not a disability) interfering with performance of duty. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, it is not authorized to change an RE code. Only the Board for Correction of Naval Records can make changes to RE codes.

: (Decisional) ( ) . The Applicant wants the narrative reason for discharge changed to C ondition, N ot a D isability. The NDRB, under its responsibility to examine the propriety and equity of an Applicant ’ s discharge, will change the reason for discharge if such a change is warranted. According to regulations, a member may be separated on the basis of erroneous enlistment, reenlistment, induction, or extension of enlistment when the enlistment would not have occurred if relevant facts had been known by the Department of the Navy or had appropriate directives been followed. Navy medical personnel did not discover the Applicant’s medical conditio n until after he began his service . Had his condition been known during the application process , it is unlikely that he would have been allowed to enlist. Although the Applicant was diagnosed with a medical condition that renders him ineligible for reenlistment (RE-4), the NDRB determined that the primary reason for his separation was because the Navy erroneously allowed him to enlist . The Board concluded that the assigned narrative reason is proper because it not only indicates that the Applicant sho uld not have been allowed to enlist , but also a ccurately describes why the Applicant was discharged from the Navy . Relief denied.

: (Decisional) ( ) . The Applicant contends that his record of service contains no negative information and, therefore, qualifies him for an upgrade to Honorable. The Applicant’s service record included one P age 13 counseling warning . The Applicant was separated on the basis of erroneous enlistment. According to regulations, the characterization of service for members separated for erroneous enlistment should be Honorable unless an entry-level separation (ELS) (within the first 180 days of active service) or void enlistment is required. The NDRB concluded that neither an ELS nor a void enlistment is applicable in this case , and the P age 13 counseling has no bearing on the characterization of service. Therefore, based on equit y, the Board voted unanimously to upgrade the characterization of service. Relief 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 d ischarge p rocess, the Board found the characterization of service inequitable and the narrative reason for separation proper. 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 for additional information.



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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