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NAVY | DRB | 2011_Navy | ND1100257
Original file (ND1100257.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20101109
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       ELIGIBLE FOR RE-ENLISTMENT

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20020223 - 20020905     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20020906     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020927      Highest Rank/Rate: AA
Length of Service: Y ear s M onth s 22 D ays
 Education Level:        AFQT: 32
Evaluation M arks:         Performance: NONE         Behavior: NONE   OTA: NONE

Awards and Decorations ( per DD 214):      NONE

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 19 June 2005, 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.       The Applicant wants his discharge upgraded and RE code changed to enhance employment opportunities and to pursue a career in law enforcement.
2 .       The Applicant contends that he sees no significant reason why his discharge should not be changed to Honorable.
3 .       The Applicant contends that the medical reason for which he was discharge d was not a valid reason to terminate his enlistment and assign an RE-4 Reenlistment code.
4 .       The Applicant wants his Narrative Reason for Separation changed to “ELIGIBLE FOR RE-ENLISTMENT . ”

Decision

Date: 20 1 2 0214             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 did not include any NAVPERS 1070/613 (Page 13) warnings, non-judicial punishments, or trials by court-martial for violation s of the Uniform Code of Military Justice. T he Applicant was found to have had keratorefra c tive surgery (LASEK) prior to entering the Navy . He did not have or request a medical waiver for enlistment. His command determined his enlistment to be erroneous and administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative board.

: (Non - decisional) The Applicant wants his discharge upgraded and RE code changed to enhance employment opportunities and to pursue a career in law enforcement. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities , nor does it have the authority to change an RE code. Only the Board for Correction of Naval Records can make changes to RE codes. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
Issue 2 : (Decisional) ( ) . The Applicant contends that he sees no significant reason why his discharge should not be changed to Honorable. Navy regulations direct that the Character of Service for members notified of intended recommendation for discharge while in an entry level status (within the first 180 days of enlistment) be Uncharacterized except in circumstances where service has been so meritorious that an Honorable is clearly warranted. In cases of misconduct, a less favorable characterization of service, such as General (Under Honorable Conditions), may be assigned following different separation procedures. The Applicant’s record showed no meritorious service that would warrant an Honorable characterization of service, and no misconduct that would warrant a General (Under Honorable Conditions). With respect to non-service related administrative matters, i.e., Department of Veteran Affairs benefits, civilian employment, etc., an U ncharacterized separation shall be considered as the equivalent of an Honorable characterization. The NDRB found the Applicant’s characterization of service to be appropriate as assigned. Relief denied.

Issue 3 : (Decisional) ( ) . The Applicant contends that the medical reason for which he was discharge d was not a valid reason to terminate his enlistment and assign an RE-4 Reenlistment code. He provided a statement describing the circumstances leading to his decision to get surgery to correct his vision and the circumstances surrounding his discharge . The NDRB is not authorized to question or change medical decisions. However, t he NDRB discerned no impropriety within the process. Navy regulations direct that the Character of Service for members notified of intended recommendation for discharge while in an entry level status (within the first 180 days of enlistment) be Uncharacterized except in circumstances where service has been so meritorious that an Honorable is clearly warranted. T he NDRB determined that relief based on this issue was not warranted. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant wants his Narrative Reason for Separation changed to “ Eligible for Reenlistment . ” “Eligible for Reenlistment” is not a valid Narrative Reason for Separation. The Applicant’s Report of Medical History , dated 13 February 2002, indicates he wore glasses at the time and had not had any type of eye surgery. All items pertaining to his eyes on the Report of Medical Examination, also dated 13 February 2002 , were assessed as “normal . ” According to the Applicant, prior to reporting for active duty, he had several conversations with his recruiter about having LASEK surgery. Sometime between 13 February 2002 and 5 September 2002, t he Applicant had the surgery . Shortly after his arrival at recruit training on 6 September 2002 and while completing a questionnaire , he revealed that he had LASEK surgery . Regulations direct that “Failed Medical/Physical Procurement Standards” be assigned as the Narrative Reason for Separation for members not meeting the minimum physical standards for enlistment upon entry when the problem is not discovered or revealed until in - processing at Recruit Training Command and/or at the Naval Training Center. The condition must be verified and documented by a medical officer . Regulations also state that the member may be separated with an Uncharacterized ( Entry Level Separation ) . The attending medical officer recommended a waiver for the condition, which was denied by the Bureau of Medicine and Surgery due to not meeting physical standards as the result of keratorefractive surgery. The Applicant was subsequently discharged . The Board determined that the assigned Narrative Reason for Separation was proper, and that relief based on this issue is not warranted. The Applicant, however, can apply to the Board for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) using DD Form 149 to request a change in the Reenlistment code.

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 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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