Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001887

Original file (ND1001887.rtf) Auto-classification: Denied

ex-ABHAA, USN

Current Discharge and Applicant’s Request

Application Received: 20100728

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)        20071130 - 20080317     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080318     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090515      Highest Rank/Rate: ABHAA
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.33

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :
- 20090401 :       Article (Fraternization)
         Awarded : (to E-1) Susp ended: (suspend 6 months)

S CM :             SPCM:             C C :

Retention Warning Counseling :
- 200 9 012 9 :       For Adjustment Disorder with mixed Anxiety and Depressed Mood as determined by a Mental Health Evaluation conducted on 20090126.

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 24 effective 28 July 2008 until Present, 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.        Applicant seeks a disc harge upgrade to obtain veteran education benefits.
2.       Applicant contends her discharge was inequitable and was based only on medical reasons, not misconduct.

Decision

Date: 20 1 1 11 29             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 discharg e 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 identif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning for adjustment disorder (29 Jan 2009) and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, fraternization). The Applicant’s medical and service records indicate she began receiving mental health evaluations and counseling in November 2008, approximately four months after checking into her command aboard the USS George H . W . Bush. After interview and evaluation, the physician diagnosed the Applicant with AXIS I: Adjustment Disorder with Mixed Anxiety and Depressed Mood. The Applicant was found fit for duty and returned to work with planned weekly counseling thereafter. In late January 2009, the Applicant was referred to Naval Medical Center Portsmouth (NMCP) VA after voicing a suicidal ideation in which she related her plan to overdose on medication. In early February 2009 , she was again referred to medical for stating she would rather be dead than remain in the Navy. On 2 May 2009, the Applicant was admitted to the NMCP Psych i atry ward for suicidal thoughts. A p sychiatrist confirmed the previous diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and re-recommended administrative separation from the Navy. During the patient’s prior hospitalization, administrative separation had been recommended on the basis of an Adjustment Disorder. The patient’s command had delayed processing the separation until the patient completed her restriction for a charge of “ perceived fraternization. ” During this hospitalization, the recommendation was again communicated to the command for administrative separation , stating “T he patient has a psychological or medical condition that is likely to interfere with continued military service, but is not considered eligible for referral to a medical board. As indicated in the evaluation and diagnosis, the service member manifests a severe inability to adjust to the demands of Navy life. Per DOD Instruction 1332.38, this condition does not constitute a physical disability, permitting separation under MILPERSMAN 1910-120. Individuals with this condition historically are maladapted to Naval Service due to reasons of personality and/or mental capacity, rarely complete enlistment successfully, and often tie up command resources during the remaining time in service . ” Based on the significant medical history and the recommendation of the NMCP Psychiatrist, the Applicant ’s command processed her for administrative separation. When notified of administrative separation processing using the procedure on 6 May 2009 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. The Applicant was separated from the Navy on 15 May 20089 with a Gen eral (Under Honorable Conditions) discharge due to Condition , Not a Disability.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education 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. Moreover, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends her discharge was inequitable and was based only on medical reasons, not misconduct. Per the Naval Military Personnel Manual (MILPERSMAN) , when the command suspects a physical condition interferes with a Sailor ’ s effective performance of duty, the Sailor should be referred to the appropriate medical authority. If examination by a medical officer confirms that the Sailor is suffering from a physical condition apparently beyond the individual ’ s control and indicates that the condition is not a disability, initiate separation proceedings per MILPERSMAN section 1910-120 for any additional physical condition which interferes with duty (as determined by the commanding officer and medical officer) and not con sidered a physical disability.

Although a review of the Applicant’s record reveals little details regarding her misconduct (UCMJ Article 92 violation for fraternization) , a review of h er evaluation report marks reveal an overall trait average (OTA) of 2.33. Per the MILPERSMAN, a Sailor may be awarded a General ( Under Honorable Conditions ) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Additionally, if a member’s OTA is below 2.49 , the Sailor can be awarded a General ( Under Honorable Conditions ) discharge. Based on her 2.33 OTA average and an N JP within her less than 14 months of service , the command had the appropriate justification to award the Applicant a General ( Under Honorable Conditions ) discharge. Accordingly, the Board found this issue did not provide a basis for which relief could be granted. 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 the administrative separation 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 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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NAVY | DRB | 2010_Navy | ND1001887

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