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NAVY | DRB | 2014_Navy | ND1400533

Original file (ND1400533.rtf) Auto-classification: Denied

ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20140211

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       HONESTLY REFLECT REASON FOR SEPARATION

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20121119 - 20130409     Active:

Period of Service Under Review:
Date of Current Enlistment: 20130410     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20130917      Highest Rank/Rate: SN
Length of Service: Y ear( s ) M onth( s ) 08 D a y ( s )
Education Level:        AFQT: 95
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      Pistol

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. 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 seeks Department of Veterans Affairs (VA) benefits.
2 .        The Applicant contends h is chain of command informed him that he would receive an Honorable characterization.
3 .       The Applicant contends his in-service conduct warrants an Honorable characterization.
4 .        The Applicant contends his post-service diagnoses of herniated lumbar disc, annular tears, bulging disc, lumbar radiculopathy, facet arthritis, tor n left hip labrum, patella bursitis, and left knee bone marrow edema validates and unequivocally shows his in-service injury was not a pre-existing condition.
5 .       The Applicant contends his N arrative R eason for Separation is incorrect since he declared his medical history upon enlistment and was cleared for Naval Special Warfare duty.
6 .        The Applicant contends his N arrative R eason for Separation is incorrect since the Navy presumes his injur y w as pre-existing , and it does not accurately reflect why he was discharged .

Decision

Date : 20 1 4 0 3 20             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

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’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. Based on the Applicant ’s condition that was determined to have existed prior to his entry in to service , command 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 Authority review.

: (Nondecisional) The Applicant seeks VA 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.

Issues 2-3 : (Decisional) ( ) . The Applicant contends his chain of command informed him that he would receiv e an Honorable characterization. The A pplicant further contends his in-service conduct warrants an Honorable characterization. Regardless of what the Applicant’s chain of command told h im, the Separati on Authority (in the Applicant’s case, Commanding Officer, Training Support Center, Great Lakes, IL) determines the characterization of service. Since the Applicant only served 161 days on active duty (calculated from the da te of enlistment to the da te of notification of separation proceedings), his command discharged him as an Entry Level Separation. Per Naval Military Personnel Manual (MILPERSMAN) Article 1910-308, the characterization of service for Entry Level Separation is Uncharacterized. An Uncharacterized discharge is warranted when separation 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 by the presence of unusual circumstances involving personal conduct and performance and is approved on a case-by-case basis by the Secretary of the Navy . 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. A General (Under Honorable Conditions) characterization is not authorized for an Entry Level Separation and is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Uncharacterized characterization is neither a negative nor an undesirable discharge but rather is the type of characterization assigned when the observed period of service is too brief to qualify a member’s service. Since the Applicant served only 161 days , an Uncharacterized characterization is proper and equitable. Relief denied.

Issues 4-6 : (Decisional) ( ) . The Applicant contends his post-service diagnoses of herniated lumbar disc, annular tears, bulging disc, lumbar radiculopathy, facet arthritis, tor n left hip labrum, patella bursitis, and left knee bone marrow edema validates and unequivocally shows his in-service injury was not a pre-existing condition. The Applicant further contends his N arrative R eason for Separation is incorrect since he declared his medical history upon enlistment a nd was cleared for Naval Special Warfare duty . In addition, the Applicant contends his N arrative R eason for Separation is incorrect since the Navy presum es his injury was pre-existing, and it does not accurately reflect why he was discharged. The NDRB completed a thorough review of the in-service and post-service medical documentation submitted by the Applicant and also conducted a thorough review of his in-service medical records. The Applicant’ s medical record s document that he had a pre-service left knee surgery in 2006 , he fully disclosed this history upon enlistment, and competent medical authority fully cleared the Applicant to enter Navy recruit training and participate in follow-on Naval Special Warfare training . On 17 July 2013, while participating in Basic Underwater Demolition/SEAL (BUD/S) preparation training at Great Lakes, IL, the Applicant sustained a left knee injury and was placed on limited light duty (LLD). Over the ensuing six weeks, the Applicant underwent numerous examinations for this injury, including an MRI, and received physical therapy. On 2 9 August 2013, a Navy physician examined the Applicant and noted, “26 year old male patient reports to clinic to follow up on left knee px (pain) . Pt states he initially reported to clinic on 17 JULY 13 after hurting his left knee in a pothole during his physical training. Pt has been LLD on crutches from 17 JUL Y 13 - 20 AUG 13.” Under Past Medical/Surgical History, it states, “ Prior surgery left knee, torn meniscus lateral and medial and removal of cartilage.” Under History of Present Illness, it states, “Pt was seen by Dr. R_ and has a positive bone scan and MRI for bone marrow edema and patellar bursitis. Pt states that after six weeks of physical therapy that his knee is getting worse and that he is not able to sleep well, walk without pain, or train. He has a prior meniscal tear in 2006 with surgery and waiver prior to his naval service. Pt currently states that he has no desire to stay in the Navy and that his motivation is not there since he was dropped from pre-BUD/S. He states that he does not want to continue with the military and be placed on LIMDU (Limited Duty)/MEB (Medical Evaluation Board). ” The final note in this 2 9 August 2013 entry states, “1. Bursitis Prepatellar. Prior history of meniscal tear possibly made him more susceptible to injury when he jammed his knee. EPTS (Existed Prior to Service) ELMS (Entry Level Medical Separation) paperwork submitted for separation due to existing injury with tx (treatment) and waiver with knee injury on his knee. ” Nowhere in the Applicant’s in-service medical records during his 161 days of service were there any entries for complaints of back or hip pain. Based upon the Applicant’s left knee injury that was not improving and his inability to continue with training, the Applicant’s command notified him of administrative separation processing on 5 September 2013 for Defective Enlistment and Induction - Erroneous Enlistment as evidenced by a condition that existed prior to service. The MILPERSMAN reference article for discharge based on an Erroneous Enlistment is Article 1910-130. Per this article, a member may be separated on the basis of erroneous enlistment, reenlistment, induction, or extension of enlistment when the enlistment would not have occurred if relevant facts had been known by the Department of the Navy or had appropriate directives been followed. In the Applicant’s case, he did reveal his prior medical history and so was not considered a Fraudulent Enlistment .

However, after a complete review of the records and MILPERSMAN Article 1910-130, the NDRB determined he should not have been discharged for Erroneous Enlistment since the Navy had cleared him for training despite knowing about his pre-service knee injury, and the Applicant successfully completed recruit training and was completing the BUD/S preparation training when he injured his knee by stepping in a pothole. His referral into the Disability Evaluation System at the time may have been appropriate given his in-service injury. However, t he NDRB does not have the authority to change a Narrative Reason for Separation to one indicating a medical disability or other medical-related reasons such as Condition, Not a Disability. Only the Board for Correction of Naval Records can grant this type of narrative reason change, and the Applicant is encouraged to petition that board using DD Form 149 to see if further relief is appropriate. In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Since the Applicant was not notified of any other Narrative Reason for Separation that accurately describes why he was separated, the NDRB determined the reason for his discharge shall change to Secretarial Authority. 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 that though separation was warranted, it was conducted improperly. Therefore, the awarded characterization of service shall but the N arrative R eason for S eparation shall change to SECRETARIAL AUTHORITY. 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), 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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NAVY | DRB | 2014_Navy | ND1400533

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