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Docket No. ND00-00900

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

 ex-SR, USN
Docket No. ND00-00900

Applicant’s Request

The application for discharge review, received 000717, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

My discharge should be upgraded to Honorable and the issues of why my Other-Than-Honorable discharge is unjust are stated below.

1.  POOR MILITARY MEDICAL ATTENTION

Prior to going AWOL on 6/24/90 1 had been having problems with my gallbladder and was in sick call.  The doctors did many tests including a Hida Scan.  Although the Scan clearly showed that I had Chronic Gallbladder Disease, naval doctors insisted there was nothing wrong with me.  After this ridiculous assertion, I felt compelled to go AWOL to acquire proper medical attention so I returned to Mississippi and experienced severe pain upon arrival.  My mother rushed me to the Emergency Room where the doctor confirmed Chronic Gallbladder Disease: Acute Cholecystitis*.  I was admitted to the hospital afterward (see enclosed).  With some convincing, mom enabled me to see that returning to the Navy was in my best financial interest in order to receive necessary gallbladder surgery.  Without further adieu, I was driven to the Meridian Naval Base and the U.S. Navy flew me to Norfolk where I was put on restriction.  A couple of days later I was not feeling well so I attempted to muster early at the designated area.  I was told that I had to muster at the correct time regardless of how I felt.  I said, "With all due respect I will not attend muster.  If you want me I will be in my room asleep."  They asked if I really felt that bad.  I responded affirmatively.  After this exchange, I was taken to the hospital by ambulance.  Upon arrival, I laid in the E.R. for hours before being admitted.  Military Police guarded me as if I was a criminal.  On one occasion I asked if I could smoke and the nurse said, "You are not allowed out of the wing".  On 7/19/90, my 20th birthday, I was scheduled to be discharged from the hospital, but I noticed blood in my urine.  I told the nurse about this and she told me the next time I went to the bathroom I should use the urine pail and let her know.  I did.  Blood in my urine was evident again.  Believe it or not, I was discharged anyway.  The doctor said, "It is highly impossible for someone your age to have gallbladder problems."  Following hospital discharge I had to go to the Master-At-Arms office and wait for transport.  I asked if I had to be restricted to this wing of the hospital.  He told me that I did not since I was not a criminal.  I went back to the base where I continued my restriction.  The Navy was doing absolutely nothing to help me with my physical ailment, so I reluctantly went AWOL again in order to be sent to Captain's Mass and be discharged.  I felt this was the only way to receive proper medical treatment.

* "Cholecystitis is an inflammation of the gallbladder [and can be either acute - which I had - or chronic] ... The individual may awaken in the middle of the night with indigestion, gas, and a sharp pain in the upper right quarter of the abdomen, which is often hard and tender to the touch.  Pain may also be felt in the middle of the abdomen and may spread to the tip of the right shoulder blade.  The pain is crampy and severe.  Vomiting is likely and provides some relief.  Nuclear medicine scanning confirms the diagnosis of cholecystitis.  In this procedure, a radioactive material is administered, and its distribution in the affected area is recorded on X-ray film.  X-ray examination and ultrasonography, a technique that uses sound waves to create images of internal structures, may also be used to confirm the diagnosis and to locate any gallstones.

Treatment of an acute attack may include rest, intravenous feeding, painkillers and antibiotics.  Because attacks are likely to recur, however, the usual solution is surgical removal of the gallbladder.  This is often done immediately." (Pp. 327-328 of Family Health & Medical Guide with Ira J. C_, M.D., J_ W. E_, M.D., Z_ S F_, M.D. contributing; 1996 copyright)

2.  DISCRIMINATION

While in the military I was the victim of gender discrimination.  The first incident occurred when I was working for the Master-At-Arms office at Norfolk Naval Base.  Chief E_ would not let me perform certain duties because I was a woman.  The second incident occurred when I was stationed at Port Ops NavSta Norfolk.  I reported to Petty Officer 1 R_ after I returned from sick call and was put on SIQ, excused to go home near work's end.  I politely asked to pick-up a friend of mine on the way home since I was my friend's only ride.  Petty Officer 1 R_ responded favorably so I thanked him and departed.  The next time I reported to work the Chief, whose name escapes me, had written me up three times for the same thing.  I told him I would not sign the forms and I went to see Petty Officer 1 R_ about the situation.  He spoke to the Chief as well as the Lieutenant that was in charge of my command.  After the issue was discussed, Petty Officer 1 R_ discarded the write-ups.  It has been said to me that the Chief just wanted to see me discharged before he retired.  This fellow seemed old-schooled and I feel he was against women serving in the military.  Unfortunately, he wanted to send me to another Captain's Mass knowing that I would be discharged because this would be my third one.  Importantly, after my second Captain's Mass I had done E-2 through E-5 testing to advance in rank.  I was trying to stay out of trouble when Acute Cholecystitis struck. (see enclosed).

3.  DENIAL OF A PROMISED ADMIN. DISCHARGE 

The Friday before my Other-Than-Honorable discharge came through; I was given separation papers for a Medical Administrative Discharge.  I was supposed to get signatures, then turn in the form.  Sadly, on that particular Friday it was pouring down rain and because of this I was only able to get about half of the required signatures.  Since I was on restriction, I reported to the Master-At-Arms' office and explained to them what had happened.  He asked to see my paper and after I handed it to him he told me to get another form signed instead.  When I asked about the Medical Administrative Discharge I was informed that "it was too bad; I had lost out".  Afterward, I tried to appeal to Chief E_ and he denied me as well.  The Other-Than-Honorable discharge resulted.  Obviously, the Chief wanted to cover his tracks and deny a Medical Administrative Discharge for me.

It is unequivocally stated in my medical records that I was recommended for an Expeditious Medical Administrative Discharge, albeit through the Psychiatric Department (see enclosed).  This discharge was based on the following information:

Axis I	Alcohol Abuse
Axis 11	Borderline Personality Disorder
Axis III	None
Axis IV	Mild
Axis V	78/80 GAF

These doctors' notes were dated August 15, 1990.  Admittedly, I did have some personal issues to tackle while in the Navy but I was attempting to deal with those.  It got to a certain point, however, where all I wanted to do was leave.  At times I felt like nobody thought I was good enough to be in the Navy.  On the doctors' notes dated August 17, 1990 I was recommended for an Expeditious Medical Administrative Discharge.  I know that Chief E_ wished I would be court-martialed and placed in the brig.  He did not want me to be Honorably Discharged because of our incident.

4.  ASSAULT

Before I went to my second Captain's Mass my roommate (in my barracks at Intrepid Hall) and I were not getting along.  Therefore, I decided to move in with another in the barracks.  How little did I know that this would cause me severe problems.  The previous roommate reported this to Chief E_.  Unbelievably, she told him she thought I was gay!  Chief E_ asked me about the situation.  I told him about me and my roommate not getting along.  He asked me if I was gay and I said a resounding, "No!" He told me that I had to move back into my former room.  I expressed my strong opposition and he said, "You will!" He and another Petty Officer escorted me back to the barracks so that I could remove my belongings.  We were at the bottom of the steps of Intrepid Hall arguing.  Chief E_ and the Petty Officer were talking and I said, "I will go move my things." I proceeded to run up the stairs and Chief Ellis followed.  After reaching the top, I attempted to open the door when this Chief grabbed me by the arm.  He slammed his foot against the door trapping me between doors as well as pulling me away from the door while gripping my arm.  I asked him to please let me go.  He would not.  I asked him again.  Again, he would not.  I asked a third time, and he still would not let me go.  At this point, I scratched his arm in order to be free of his grasp.  The next day when I went to work, he handed me a write-up.  As idiotic as this sounds, he said that I had assaulted him.  Obviously, I had merely defended myself from a violent man.  Probably due to fear of the Chief s reprisal I could not get anyone who was in the entrance of the barracks to go with me to Captain's Mass.  I went to Mass shortly thereafter and suffered a humiliating drop in rank from E-2 to E- I and put on restriction.

Important aside: When I worked in the Master-At-Arms' office I learned that the Master-At-Arms' were not allowed to touch you, regardless of gender, unless they told you that they were apprehending you.  Chief E_ (a Master-At-Arms) did not say those words to me before he physically assaulted me.  I felt that he should have gone to Mass, instead of me, because he was the assailant.

5.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the corrective action as requested by the FSM of an upgrade of her Under Other Than Honorable discharge to Honorable.

Enclosed within the records is a four page statement from the FSM, noting the reasons for the change of discharge as follows; poor military medical attention; discrimination; denial of promised medical administrative discharge; and assault.

Under each issue she provides a detailed explanation as to the circumstances that derived from each and for the sake of brevity we refer the Board to that summary for review and consideration.

It is the FSM's contention that the actions and the discharge which resulted, are unjust in their very nature, and requests the Board review and correct these past action by reason of favorable upgrade.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Character reference dated August 30, 1999
Copies of certificates dated October 5, 1998, October 28, 1998, November 30, 1998, December 4, 1998, February 1, 1999, March 1, 1999
Copy of thank you letter dated July 20, 1999
Copy of thank you letter dated January 5, 1999
Copy of thank you letter dated March 16, 1998
Certificate from Pennsylvania Child Abuse History Clearance dated January 30, 1998
Copy of criminal record check dated January 21, 1998
Copy of thank you note
Copy of certificate for participating in Groundhog Job Shadow Day 1999
Copy of certification of care dated September 1, 1993
Copy of doctor's report (6 pages)
Fifty-four pages of medical records
Copy of college transcript
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	880413 - 890409	COG

Period of Service Under Review:

Date of Enlistment:  890410		Date of Discharge:  900828

Length of Service (years, months, days):

	Active:    01  04  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  46/49

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.20 (2)	Behavior:  1.90 (2)		OTA:  2.10

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  23 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900201:	NJP for violation of UCMJ, Article 91: Show disrespect in language toward MAC(SW) by saying to him, "Fuck you put me in jail" "I do not give a fuck about what you are saying." I am going to do what I want to do."  "I do not give a fuck about anything."  "I hope you fucking choke tonight on 24Jan90, violation of UCMJ, Article 92 (2 specs): (1) Fail to obey order on 16Jan90, to wit: to remove her gold earrings, (2) Wrongful appearing in uniform wearing gold earrings on 14 and 16Jan90.
	Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 14 days, reduction to SR.  Reduction suspended for 6 months.  No indication of appeal in the record.

900329:	NJP for violation of UCMJ, Article 92: Disobey lawful written order, violation of UCMJ, Article 86: Unauthorized absence from appointed place of duty.
	Award: Restriction and extra duty for 30 days.  No indication of appeal in the record.

900329:	Retention Warning from Naval Station, Norfolk, VA:  Advised of deficiency (Disobey lawful written order and unauthorized absence from appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900523:	Retention Warning from Naval Station, Norfolk, VA:  Advised of deficiency (Following letters of indebtedness to Navy Resale Activity, Naval Base, Norfolk: N48_RDH:EAP 5546/7210 of 7May90 and N48:RDH:EAP 5546/7210 of 17Mar90 and letter of indebtedness of Jitney Jungle number 70, Clinton, MS of 3May90.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

900801:	Admitted to Portsmouth Naval Hospital Psychiatry ward.

900806:	Discharged from Portsmouth Naval Hospital.

900806:	NJP for violation of UCMJ, Article 86 (4 specs): (1) Unauthorized absence from 0400-0900, 19Jun90, (2) Unauthorized absence from 2225, 24Jun90 to 1307, 12Jul90 (17 days/surrendered), (3) Unauthorized absence from 0630-0900, 24Jul90, (4) Unauthorized absence on 0700, 25Jul90 to 2030, 31Jul90 (6 days/apprehended), violation of UCMJ, Article 92: Fail to obey a lawful order, violation of UCMJ, Article 134: Break restriction on 12Jul90.
	Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

900806:	Naval Station, Norfolk, VA notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct  and commission of a serious offense as evidenced by your service record entries.

900806:  	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

900809:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense. 

900823:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900828 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant attributes her misconduct in the Navy to “poor military medical attention.”  In the applicant’s issue 1, the Board found that the applicant had 3 NJPs  and 2 retention warnings during her one year and four months in the service.  Although the applicant suggests that her poor military medical attention contributed to her problems, the Board found little connection with the misconduct of record, specifically disrespect, failing to obey orders, breaking restriction and disobeying lawful written orders.  The applicant is responsible for her misconduct and must accept the consequences.  No relief will be granted based on this issue. 

The applicant states in issue 2 that she “was the victim of gender discrimination.”  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with her discharge at the time of its issuance, and that her rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  Relief is not warranted.

In the applicant’s issue 3, the applicant feels she should have been discharged for a personality disorder since she was diagnosed on 900815 with having a borderline personality disorder.  The command had already begun processing the applicant for administrative discharge for misconduct due to pattern of misconduct and commission of a serious offense when the applicant was diagnosed with the personality disorder.  If the dates had been earlier, the CO would merely have dual processed the applicant for pattern of misconduct, commission of a serious offense and personality disorder.  The outcome of the discharge would not change.  No relief will be granted based on this issue. 

The applicant states in issue 4 that she was assaulted and that there is a connection between her misconduct of record and her assault.  The applicant submits no documentation to support her allegations of assault.  In addition, the Board sees little connection between her allegations and the clear pattern of misconduct that she established.  The applicant had 3 NJPs and 2 retention warnings after only 8 months of service.  The Board will not grant relief on the basis of this issue. 

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided ample documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT ‑ A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9229/A9321/A9331