Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100810

Original file (ND1100810.rtf) Auto-classification: Denied

ex-ENFN, USN

Current Discharge and Applicant’s Request

Application Received: 20110208

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)        20000131 - 20000223     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000224     Age at Enlistment:
Period of E nlistment : Years 30 MONTHS Extension
Date of Discharge: 20050825      Highest Rank/Rate: EN2
Length of Service: Y ear( s ) M onth( s ) 2 D a y ( s )
Education Level:        AFQT: 71
Evaluation M arks:         Performance: 3.8 ( 5 )      Behavior: 3.6 ( 5 )        OTA: 3.59

Awards and Decorations ( per DD 214):      Rifle Pistol (3) (2) NDSM L o C (3)

Periods of UA /C ONF :

NJP :
         - 20050816 [extracted from NAVPERS 1070 Awards page and medical records, misconduct details NFIR]
                           Awarded: RIR (to E-4)

         - 20050822 [extracted from NAVPERS 1070 Awards page and medical records, misconduct details NFIR]
                           Awarded: RIR (to E-3)

S CM :    SPCM:             C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ GENERA L (UNDER HONORABLE CONDITIONS) ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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 :

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.        Applicant seeks a discharge upgrade to obtain veteran education benefits.
2.       Applicant contends command impropriety and mistreatment led to the misconduct for which he was separated .

Decision

Date : 20 1 2 04 19             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 p resumes 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 . Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any documented NAVPERS 1070/613 (Page 13) retention w arnings, commanding officer nonjudicial punishment (NJP) , or trial by courts-martial. However, documents within the record indicate the Applicant received two reductions in rank (16 Aug 2005, EN2 to EN3; and 22 Aug 2005, EN3 to ENFN) , with the appropriate entries for restart of the G ood C onduct M edal period (12 Aug 2005 and 21 Aug 2005 , respectively) listed on the NAVPERS 1070 Awards Page , indicat ing he received punishment as a result of two separate NJP (Captain’s Mast) proceedings . Since the NDRB did not have the Applicant’s administrative separation pack age documentation, it could not determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request General Court-Martial Convening Authority review . The Applicant was separated from the Navy on 25 August 2005, three days after receiving his second reduction in rank , with a General (Under Honorable Conditions) due to Personality Disorder. The separation code JFX listed on the Applicant’s DD Form 214 indicates he was not eligible for an ad ministrative separation board.

: (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. Additionally, 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 command impropriety and mistreatment led to the misconduct for which he was separated. 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. Allegations notwithstanding, the NDRB conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. The Board did identify a medical evaluation (dated 22 August 2005) aboard the USS Tortuga in which the Applicant presented with homicidal ideations. The evaluation reported referenced that the Applicant had been previously prescribed Effexor for Major Depressive Disorder and that his last mental health eval uation was in Dec ember 20 04 with Naval Medical Center (NMC) Portsmouth , VA. The report also referenced two NJPs the Applicant had recently received within one week , with resultant reduction s in rank from E-5 to E-3. The Applicant was transferred to NMC Portsmouth, VA and received a mental health evaluation the same day (22 August 2005) . Upon completion of the mental health evaluation on 22 August , the Applicant was diagnosed with: AXIS I - Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, and AXIS II - Personality Disorder NOS (not otherwise specified) with Cluster B Traits. The evaluation stated , the Applicant admit ted to “a pervasive history of anger management difficulties, affective dysregulation, identity disturbance, stress-related paranoia, and self-mutilation (though none recently). ” The Applicant was found fit for duty and returned to his command. The physician also noted , “ T he evaluating psychiatrist strongly recommends expeditious

administrative separation from the military on the basis of a personality disorder of such severity as to render the member incapable of serving adequately in military service, in any capacity, as per MILPERSMAN Article 1910-122. The service member does not have a treatable mental disorder and is not considered disabled for purposes of disability ratings by the military or Veterans Administration system. He is returned to the command with the recommendation that he be separated for the good of the Naval Service as he is considered highly unsuitable for continued Naval Service. On 25 August 2005, the Applicant was separated from the Navy with a General (Under Honorable Conditions) discharge due to Personality Disorder.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant ’ s discharge, will change the reason for discharge if such a change is warranted. The Applicant does not deny that he was suffering from a P ersonality D isorder at the time of his discharge from Naval S ervice. He was diagnosed by a qualified medical officer as possessing a long-standing disorder of character and behavior of such severity as to interfere with serving adequately in the Navy . No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged and , therefore, a change to the Narrative Reason Separation would be inappropriate. Moreover , p er the Nav al Military Personnel Manual (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. The Applicant’s record of service reflected two NJPs , within approximately one week of each other (resulting in two reductions in rank) during h is period of e nlistment . Accordingly, the NDRB determined that the Applicant’s General (Under Honorable Conditions) discharge on the basis of Personality Disorder was proper, equitable , and in accordance with the applicable orders and directives in effect at the time of his discharge. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, record and medical r ecord e ntries , 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.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 20 June 2005 until 28 May 2008, Article 1910-122, Separation By Reason of Convenience of the Government - Personality Disorder(s).

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 .

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 | 2011_Navy | ND1100810

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