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NAVY | DRB | 2011_Navy | ND1101596
Original file (ND1101596.rtf) Auto-classification: Denied

ex-PSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20110614
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)        20070921 - 20071120     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20071121     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100923      Highest Rank/Rate: PSSN
Length of Service: Year(s) Month(s) 03 D ay(s)
 Education Level:        AFQT: 88
Evaluation M arks:         Performance: 2.7 ( 3 )      Behavior: 3.3 ( 3 )        OTA: 3.22

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 20100806 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20100806 :      For disrespect in language toward Senior Petty Officer (2 specifications)

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:        




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

Applicant’s Issues

 1.       The Applicant contends he was administratively discharged without a medical board and medications.
2 .       The Applicant contends he was imprope rly treated by the Navy by being confined to the barracks with no communication with doctors while awaiting separation.
 3 .       The Applicant contends his evaluations reflect that he served honorably.
Decision

Date: 20 1 2 1109             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 included NAVPERS 1070/613 (Page 13) warning and non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specification s ). On 30 August 2010, qualified medical authority diagnosed the Applicant with psychosis, rule out alcohol - induced psychosis, and alcohol dependence (existed prior to entry) and recommended administrative separation . Based on his condition, his command determined that he was not medically fit for Naval service and administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening A uthority review.

: (Decisional) ( ) . The Applicant contends his discharge was improper , because he was administratively discharged without a medical board and medications. On 30 August 2010, the DoD-VA psychiatrist at Naval Clinics , Great Lakes, Illinois, diagnosed the Applicant with p sychosis, determined that it existed prior to entering the service, and recommended administrative separation. Navy regulations direct that a medical board be convened if there is any question as to whether the condition actually existed prior to entering the Navy or whether the condition was aggravated at any time after the member was enlisted. The Applicant provided a copy of a medical progress note recommending a medical board , as well as indicating that he was to be seen by a Navy psychiatrist and report to the pharmacy to fill medications. This note, however, was only a recommendation and was not an order. T he NDRB found no evidence in the Applicant’s medical or service record s indicating a medical board was ever convened. Therefore, based on the presumption of regularity, the NDRB concluded that proper medical authority determined that there was no requirement for a medical board and disapproved the recommendation. The Applicant provided no documentary evidence to rebut this presumption. The NDRB discerned no impropriety in the discharge process and determined that relief based on this issue was not warranted. Relief denied.

Issue 2: (Decisional) (Equity/Propriety) RELIEF NOT WARRANTED. The Applicant contends he was imprope rly treated by the Navy by being confined to the barracks with no communication with doctors while awaiting separation. The NDRB conducted a thorough review of the Applicant’s medical and service records and discerned no improper or inequitable treatment while awaiting separation. Relief denied.
        
Issue 3: (Decisional) (Equity) RELIEF WARRANTED. The Applicant contends his evaluations reflect that he served honorably. After conducting a thorough review of the circumstances that led to the Applicant’s discharge, and after reviewing the discharge process to ensure his discharge met the pertinent standards of equity and propriety, the NDRB determined the characterization awarded at the time of discharge was inequitable. The Applicant was discharged due to an erroneous enlistment , because his enlistment would not have occurred if relevant facts about his condition had been known by the Navy prior to his enlistment. Thus, the Navy erroneously allowed him to enlist. According to Navy regulations, the characterization of service for members discharged for Erroneous Entry (Other) should be Honorable, unless an Entry-Level Separation is

required. The Applicant had already served more than 180 day of his enlistment. Therefore, he was not in an entry-level status (within the first 180 days of enlistment) when he was notified of intended recommendation for discharge. Despite the one NJP for insubordinate conduct, the NDRB concluded his service was Honorable as evidenced by his evaluations and taking into consideration his mental condition. Relief granted.
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.

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 .



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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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