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NAVY | DRB | 2011_Navy | ND1100540
Original file (ND1100540.rtf) Auto-classification: Denied

ex-FN, USN
Current Discharge and Applicant’s Request
Application Received: 20101222
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20091119 - 20100119     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20100120     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100226      Highest Rank/Rate: FN
Length of Service: Y ear s M onth 07 D ays
 Education Level:        AFQT: 94
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), Change 11 effective 20 June 2005 until Present, 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 contends his Narrative Reason for Separation is incorrect , because it was based on false medical statements made by the psychologist at Recruit Training Command and by misleading and unclear statements from the Legal Department .
2.       The Applicant says that the Department of Veterans Affairs (VA) granted him 10% disability based upon their conclusion that his anxiety developed while in service.
3 .       The Applicant describ ed his post-service employment and plans for pursuing a bachelor’s degree.

Decision

Date: 20 1 2 0412             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. A qualified medical officer diagnosed the Applicant with anxiety disorder and determined that it existed prior to entering the Navy. The Applicant was also diagnosed with adjustment disorder with mixed anxiety and depressed mood . Based on the diagnosis and recommendation of a qualified medical officer , his command administratively processed him for separation. W hen 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.

: (Decisional) ( ) . The Applicant contends his Narrative Reason for Separation is incorrect , because it was based on false medical statements made by the psychologist at Recruit Training Command and by misleading and unclear statements from the Legal Department. According to regulations, a member may be separated on the basis of erroneous enlistment, reenlistment, induction, or extension of enlistment had all the relevant facts about the Applicant’s condition been known by the Department of the Navy and would have reasonably been expected to preclude, postpone or otherwise affect the Applicant’s eligibility for enlistment . On 11 February 2010, a qualified medical officer diagnosed the Applicant with anxiety disorder and determined that it existed prior to entering the Navy. To support his claim that the condition did not exist prior to service, the Applicant provided documentation from his pre-service physician. The NDRB, h owever, determined that this documentation was not enough to refute the Navy psychologist’s diagnosis of anxiety disorder that existed prior to service. Therefore, based upon the extensive comments provided by the Navy psychologist that led to the diagnosis of anxiety disorder that existed prior to service, the NDRB concluded that the in-service diagnosis of anxiety disorder and the determination that it existed prior to entering the service w ere accurate.

As to misleading and unclear statements from the Legal Department, other than the Applicant’s statement, he provided no documentation that he was misled or denied notification of rights as part of the discharge process. Documentation in his service record reveals that on 18 February 2010, he was properly notified of separation processing for an erroneous enlistment and that he waived his right to meet with counsel or submit a written statement. The NDRB determined that there was no impropriety or inequity associated with his separation proceedings. Relief denied.






Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant says that the VA granted him 10% disability based upon their conclusion that his anxiety developed while in service. Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Navy. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization. The NDRB conducted a thorough review of the medical and service records and determined that there was no impropriety or inequity in the diagnosis or the discharge proceedings. Relief denied.

: (Decisional) ( ) . The Applicant provided a statement describing his post-service employment and his desire to pursue a bachelor’s degree using the State of Florida’s education incentive. The NDRB is authorized to consider post-service factors in changing the characterization of a discharge. However, it does not consider post-service conduct as justification to change the assigned Narrative Reason for Separation if it accurately describes why the Applicant was discharged from the Navy. The NDRB discerned no impropriety or inequity in the discharge process and determined that the assigned Narrative Reason for Separation does accurately describe why the Applicant was discharged. Therefore, a change in the Narrative Reason for Separation based on post-service conduct would be inappropriate.

An Uncharacterized discharge is warranted when s eparation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted. The Applicant had no misconduct that would rate an UOTHC discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization. Therefore, no change to the characterization of service is warranted. 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 ERRONEOUS ENTRY (OTHER) . 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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