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NAVY | DRB | 2010_Navy | ND1001995
Original file (ND1001995.rtf) Auto-classification: Denied

ex-GSE3, USN
Current Discharge and Applicant’s Request
Application Received: 20100810
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)        20050331 - 20060205     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20060206     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081222      Highest Rank/Rate: GSE3
Length of Service : Y ear s M onth s 19 D a ys
Education Level:        AFQT: 68
Evaluation M arks:         Performance: 3.8 ( 4 )      Behavior: 3.3 ( 4 )        OTA: 3.27

Awards and Decorations ( per DD 214):      NDSM GWOTSM GWOTEM SSDR F LOC

Periods of UA /C ONF :

NJP : NONE        S CM : NONE       SPCM:    C C :

Retention Warning Counseling : 1

- 20081219 :       For being diagnosed with Adjustment Disorder with Depressed Mood. Your present medical condition has not been considered a physical disability; however, it may be a disqualifying factor in determinin g your suitability for further Naval Service in that your attending psychiatrist stated this “is not a short-term condition, which can be treated in a reasonable period of time . ”

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.        The Applicant contends his division officer demanded that he leave his uniforms aboard ship and that he should be reimbursed for those items.
2.       The Applicant contends he should have been afforded a Physical Evaluation Board and medically separated with an H onorable discharge.

Decision

Date: 20 1 1 12 05             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 identified one decisional issue for the Board’s consideration. The Board c omplete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant ’s record of service included one NAVPERS 1070/613 (Page 13) retention warning for diagnosis of Adjustment Disorder with Depressed Mood (19 Dec 2008) . There was no record of commanding officer nonjudicial punishment or trial by courts-martial. The Applicant’s record also indicates he was evaluated and/or admitted to Naval Medical Center (NMC) San Diego twice (Jan 2007 and Dec 2008) for mental health related issues that included Major Depressive Disorder. A 12 Dec 2008 medical report states the Applicant was admitted to NMCSD from 4-9 Dec 2008 and diagnosed with AXIS I: Adjustment Disorder with Depressed Mood. The mental health physician recommended an expeditious administrative separation of the Applicant due to unsuitability in accordance with MILPERSMAN 1910-120. “As indicated in the clinical report, the service member manifests a severe inability to adjust to the demands of military life. The evaluating Clinical Provider believes that this is not a short-term condition, which can be treated in a reasonable period of time. Per DoD Instruction 1332.38, this condition does not constitute a physical disability and its expected chronicity will exceed two years, permitting separation under the above reference. The patient collaborated with and was in agreement with the treatment plan . ” Ba sed on the medical officer’s reco mmendation and evidence within the Applicant’s records and statements from his chain of command, the Applicant’s Commanding Officer administratively processed him for separation. When notified of a dministrative s eparation p rocessing for C ondition N ot a D isability, using the notification procedure on 15 Dec 2008 , the Applicant waived his right s to consult with a qualified counsel , s ubmit a written statement , and request a General Court - Martial Convening Authority review . The Applicant was separated from the Navy on 22 Dec 2008 with a General (Under Honorable Conditions) discharge due to Convenience of the Government - Condition Not a Disability.

: (Nondecisional) The Applicant contends his division officer demanded that he leave his uniforms aboard ship and that he should be reimbursed for those items. T he NDRB is not an investigative body and allegations of command legal or administrative impropriety should be made to the Naval Inspector General ’ s Office.
: (Decisional) ( ) . The Applicant contends he should have been afforded a Physical Evaluation Board and medically separated with an Honorable discharge. 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 B oard for Correction of Naval Records can grant this type of narrative reason change. However, p er the applicable regulations, w henever a Sailor’s performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause. When the command suspects a physical condition interferes with the 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, separation proceedings should be initiated per Naval Military Personnel Manual (MILPERSMAN)

section 1910-120 ( C ondition, N ot a D isability) for the physical condition that interferes with duty ( and not considered a physical disability ) , as determined by the commanding officer and medical officer. Moreover, MILPERSMAN section 1910-120 states that the characterization of service shall be Honorable unless an Entry Level Separation or General (Under Honorable Conditions) discharge is warranted. After conducting a detailed examination of the available records, the NDRB could find no evidence of misconduct in the Applicant’s service record. Additionally, his Evaluation and Counseling Report markings (over four reporting periods) for Performance, Behavior and Overall Trait Average were 3.8 , 3.3 , and 3.27 respectively. Accordingly, t he Board found that the Applicant’s administrative separation for a C ondition , N ot a D isability was proper but not equitable per the applicable orders and directives in effect at the time of his separation. Therefore , the Board determined that , although the Applicant’s specific issue with respect to a medical discharge did not warrant relief, relief based on equity was warranted.

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 the discharge was proper but not equitable at the time of discharge. 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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