Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1102124

Original file (ND1102124.rtf) Auto-classification: Denied

ex-AN, USN

Current Discharge and Applicant’s Request

Application Received: 20110919

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       UNDER MEDICAL CONDITIONS

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20000623 - 20000706     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000707     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20001013      Highest Rank/Rate: AN
Length of Service: Y ear( s ) M onth( s ) 07 D a y ( s )
Education Level:        AFQT: 37
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

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

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), Change 24, effective 20 May 1999 until
12 June 2001, 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.        Applicant contends his discharge was improper/inequitable in that he was threatened/coerced to sign documentation related to his medical condition (glaucoma).

Decision

Date: 20 1 2 02 09             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 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 i dentif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP), or trial by courts-martial. The record revealed that the Applicant was granted an enlistment waiver for committing two civil offenses, driving while intoxicated (Nov 1999) and criminal trespass (Oct 1994), prior to entry into the Navy. The record also reveal ed the Applicant was diagnosed with glaucoma in Jul 2000 while assigned to the R ecruit T raining C ommand (RTC). In a 24 Jul 2000 medical report, the physician stated “Glaucoma EPTE (existed prior to entry)…no waiver…did not request waiver. Patient admits that he was seen in the (word unreadable) by several eye doctors and was told that he had glaucoma. Patient never went to follow-up appointments. Last doctor seen was Mar 1999…Patient was educated on (word unreadable) of disorder/cause with risk of blindness. Patient to see specialist upon discharge from mil service. Patient understands and will follow-up asap . ” When notified of administrative separation processing using the procedure on 26 Jul 2000 , the Applicant elected to exercise his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. On 28 Jul 2000, the Applicant submitted a written statement to the Commanding Officer of RTC stating his case and requested retention in the Navy. On 6 Oct 2000, the Separation Authority ( Commanding Officer , Naval Training Center Great Lakes ) directed that the Applicant be separated with an Uncharacterized-Entry Level Separation due to Erroneous Entry. The Applicant was discharged from the Navy as directed on 13 Oct 2000.

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable in that he was threatened/coerced to sign documentation related to his medical condition (glaucoma). The 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 Board conducted a detailed examination of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. The Board could find no evidence of command impropriety involving his entry level separation from service due to erroneous entry. By regulation, an U ncharacterized description shall be used when separation is initiated while a service member is in an entry level status (first 180 days of continuous active duty service) , except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstances warrant characterization as U nder O ther T han H onorable C onditions, or when characterization of service as H onorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy. The Applicant ’ s service record did not indicate any unusual circumstances of personal conduct or performance of duty during his less than 3 ½ months in the military that would clearly warrant an H onorable characterization of service.

Evidence within the Applicant’s medical and service records clearly indicate he was diagnosed with glaucoma , which is a disqualifying medical condition for enlistment. Had the Navy known about this condition during the enlistment accession process, he would not have been allowed to enlist, and therefore, he was administratively discharged for erroneous entry into military service . Whether or not the Applicant’s allegation regarding threat/coercion to sign the medical officer’s findings is factual, the Board determined it was irrelevant to the proper conduct and eventual outcome of the administrative discharge process. After careful analysis and deliberation, the Board found the Applicant’s administrative separation for erroneous enlistment (due to glaucoma, a medical condition which existed prior to his entry in to service ) was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. 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 the administrative separation 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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NAVY | DRB | 2011_Navy | ND1102124

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