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NAVY | DRB | 2010_Navy | ND1002177

Original file (ND1002177.rtf) Auto-classification: Denied

ex-AOAA, USN

Current Discharge and Applicant’s Request

Application Received: 20100831

Characterization of Service Received:

Narrative Reason for Discharge: DISABILITY EXISTED PRIOR TO SERVICE, PHYSICAL EVALUATION

BOARD

Authority for Discharge: MILPERSMAN 1910-168 [DISABILITY EXISTED PRIOR TO SERVICE,
PHYSICAL EVALUATION BOARD]

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020622 - 20030617     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030618     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040401      Highest Rank/Rate: AOAA
Length of Service : Y ear s M onth s 14 D a ys
Education Level:        AFQT: 65
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NDSM

Periods of UA /C ONF :

NJP : NONE        S CM : NONE       SPCM: NONE       C C : NONE         Retention Warning Counseling : NONE

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. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-168 (previously 3620270), SEPARATION BY REASON OF PHYSICAL DISABILITY .

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 seeks change t he narrative reason for discharge to re-enlist in the U.S. Armed Forces.
2.       The Applicant contends his discharge was improper , because he believes the medical tests were performed improperly.
3.       The Applicant contends his discharge was inequitable as he exhibits no signs of epilepsy.

Decision

Date: 20 1 20103             Location: Washington D.C .        R epresentation : NONE

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall DISABILITY EXISTED PRIOR TO SERVICE (PEB) .

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 two decisional issues for the Board’s consideration. Although the Applicant’s service records were incomplete (missing administrative separation documents to include: administrative separation notification and election of rights form, Commanding Officer endorsement, medical board and physical evaluation board findings, and th e Separation Authority Decision Letter), the Board complete d a thorough review of the available records regarding the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The records indicate that while the Applicant was assigned to B asic U nderwater D emolition /SEAL (BUDS) training , he was found not fit for duty due to a series of blackouts described in his medical record as “chronic recurrent syncopal episodes which are non-exertional, unpredictable, and not related to position…remembers symptoms for at least 6 years. Info not disclosed on medical record/physical. Two episodes in last week which is typical…no change in frequency or intensity of symptoms. Durat ion is typically a few seconds . ” The Applicant was administered a series of tests , and it was later determined he was exhibiting the symptoms of absence seizure activity . He was placed on Depakote (prescription medication) and referred for the medical board/physical evaluation board process (PEB). The NDRB did not have the PEB or administrative separation documentation available for review. However, the Applicant’s DD Form 214 indicates he was administratively separated from the Navy with an Honorable discharge due to a Disability (which existed prior to service), as the result of a PEB determination .

: (Nondecisional) The Applicant seeks a change to narrative reason for discharge to re-enlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.

Issues 2-3 : (Decisional) ( ) . The Applicant contends his discharge was improper , because he believes the medical tests were performed improperly and that he currently exhibits no signs of epilepsy. With respect to a discharge as determined by a PEB , the action of the NDRB is restricted to matters of equity related to the characterization of service at discharge; the NDRB does not have jurisdictional authority to change the finding of a PEB . In response to the Applicant ’ s request for review, determinations by the PEB are presumed to be established facts by th e NDRB. As such, the Applicant’ s request for review was considered under the pertinent standards of equity to determine if any factors in this particular case merited a change in the assigned characterization of service at discharge. After review of the available records, the Board could find no evidence to rebut the presumption of r e gularity in this case. With no misconduct of record and a minimum of 180 days of continuous active duty service, the Board found the Applicant’s Honorable discharge to be equitable and in accordance with the applicable orders and directives in effect at the time of his separation. Additionally, the NDRB does not have the authority to change a narrative reason for separation involving a medical disability or other medical related reasons as o nly the B oard for Correction of Naval Records can grant this type of narrative reason change. A ccordingly, the B oard determined 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 and r ecord e ntries, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain DISABILITY EXISTED PRIOR TO SERVICE, PHYSICAL EVALUATION B OARD. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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 | ND1002177

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