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NAVY | DRB | 2010_Navy | ND1001297
Original file (ND1001297.rtf) Auto-classification: Denied

ex-ETSN, USN
Current Discharge and Applicant’s Request
Application Received: 20100421
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)        20040909 - 20050228     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20050301     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090327      Highest Rank/Rate: ET3
Length of Service : Y ear s M onth s 27 D a ys
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 2.8 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 2.71

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20071105:       Article 92 ( Failure to obey order or regulation )
         Awarded: Suspended:

- 20081219 :      Article ( Failure to obey order or regulation )
         Awarded: Suspended:

S CM :   

SPCM:   

C C :     

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560D), Change 23, effective 29 May 2008 until 20 August 2009, 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 that the incident that led to his discharge was prompted by a mental disorder and believes that it was unfair to penalize him for something that was out of his control.
2.       Applicant contends that since his discharge from the Navy, he has been gainfully employed, taken care of his grandfather, and is a hard worker as well as a well-respected asset to the community.
3 .       Applicant contends his conduct and military bearing was always above average, he was always promoted at the first opportunity, and his evaluations were always above average.
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 two non-judicial punishment s for violations of the Uniform Code of Military Justice (UCMJ) : Article 92 (Failure to obey order or regulation, 2 specifications). Documentation found in the Applicant’s service record indicates he suffered from depression, anxiety, insomnia, chronic cutting, and was being seen by a psychiatrist. The NDRB did not have the Applicant’s medical record. Therefore, it presumes regularity in that c ompetent medical authority diagnosed him with a personality disorder and recommended that he be separated from the Navy . Based on the diagnosis and recommendation of compentent medical authority, his command administratively processed him for separation. 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 .

: (Decisional) ( ) . The Applicant contends that the incident that led to his discharge was prompted by a mental disorder and believes that it was unfair to penalize him for something that was out of his control. D ocumentation found in the Applicant’s service record indicat es he suffered from depression, anxiety, insomnia, chronic cutting, and was being seen by a psychiatrist. The NDRB did not have the Applicant’s medical record and administrative separation package . Therefore, it presumed regularity in that c ompetent medical authority diagnosed him with a personality disorder that was deemed so severe that his ability to function effectively in the naval environment was significantly impaired. The NDRB also presumed competent medical authority determined th e impairment interfered with the Applicant’s performance of duty, posed a threat to his safety or well-being or that of others , and recommended that he be separated from the Navy. Based on this diagnosis and recommendation, his command administratively processed him for separation. According to regulations, the service of members separated due to a personality disorder shall be characterized as Honorable unless General (Under Honorable Conditions) is warranted. Although the Applicant was not discharged for misconduct, his misconduct was appropriately considered in determining the character of his service. Despite having a personality disorder, the NDRB determined the Applicant’s multiple v iolations of the UCMJ warranted a General (Under Honorable Conditions) characterization. Relief denied.

: (Decisional) ( ) . The Applicant indicates that since his discharge from the Navy, he has been gainfully employed, taken care of his grandfather, and is a hard worker and well-respected asset to the community . The Applicant submitted two letters of character reference but no other documentation to support his statements. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The documentation submitted w as not sufficient to evaluate his post-service character and conduct. His efforts needed to have been more encompassing and documented. Examples of post-service efforts include, but are not limited to the following: verifiable continuous employment record, certification of criminal history, documentation of community or church service, evidence of a drug-free existence, official transcripts reflecting attendance at or completion of higher education, and evidence of financial stability. 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. Relief denied.

: (Decisional) ( ) . The Applicant contends his conduct, military bearing, and evaluations were above average and he was always promoted at the first opportunity , therefore suggesting his record of service warrants consideration for upgrading his discharge to Honorable. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. As a result, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record as evidenced by his multiple violations of Article 92 of the UCMJ.
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 NDRB determined that the Applicant’s characterization of service was warranted and equitable. Relief denied.
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 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 15 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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