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Docket No. ND03-00115

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

 ex-BMSN, USN
Docket No. ND03-00115

Applicant’s Request

The application for discharge review, received 20021022, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 - convicted by a civil court for offense(s) occurring during current term of military service, authority: MILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I enlist in the US Navy 1972 San Antonio Texas.  Basic training San Diego ca (6 week) My first duty station USS Anchorage LSD-36 San Diego Naval Station 1972-1973.  Rank –E4 1974-1978 USS AJAX AR-6 Naval Station San Diego CA 1978-1982 Port Hueneme Oxnard ca, Replenishment School.  Their I was learning how to transfer cargo and at sea.
1982 I was transfer to the USS Wichita AOR-1 Naval Air Station Alameda ca.  This was the type of ship I could the I was train for.
1985. I got a promotion to Chief Bosmate.
I was assigning to the port side to refuel aircraft carried and all other large ship.
In 1987 I was told to report to sick Bay.  There the ship LT doctor informs me that I testested positive for aids virus I could not understand how I tested positive for aids.  I am not a homosexual or bisexual, or did I use intravenous drugs.  I ask the ship doctor for a retest or some kind of medical treatment or medication.  He said their was not cure for aids.  By now whole ship crew, knew I was caring an aids virus.
I was in charge of 30 men in my division.  I had lost their respect.  So one day I never return to Treasure Island.
I never sought medical treatment, because I didn’t know where to go or who I could turn to.  I was very depress.
The positive test for aids has raimed my life, my career and my marriage.

1997 I was having problem with blackout and clumsiness, and sleeping a lot or to long.  I could not understand why I was still alive living with an aids virus.
1998 I blackout and found myself at Alameda County hospital.
Dr S_ found my military I.D in my wallet.  He asks me about my medical history.  I told him, I tested positive aids in 1987 in the USS Navy.  I was retested, and found was positive for HIV.  He explains about HIV, I said I was lucky to be still alive.
Because my body was beginning to ware dnow.  That why I was sleeping a lot, and having blackout.
Dr S_ tace my military medical records.  That when I started HIV Medication
April 4, 1999 I was release from the county hospital.  I was told to the VA outpatient Oakland ca. 2221Martin Luther King JR Way.
May 5, 1999 I reported to Dr S_ K_.  I explain why I was there.  He called Dr S_ at the county hospital.  That when I started medication and treatment.

July 19, 1999 I file a claim VA Regional 1301 clay Street Oakland CA  94612-5209 (510) 834-2921

My claim was for compensation because I as diagnose for aids virus I did not have.  During the interview shown copy of military time of active duty DD-214.
1974-1978  1978-1989 other than honorable.

My military service time of active duty 1972-1974 1974-1978

1978-1982-1987 my enlistment expire in 1989.  I would have retire in 1992.
I was never charge with desertion because I was never reported missing.
I feel my reason was justify because I could have die or got kill by someone.  My family would have never known what happen to me.  So since I was a problem on that ship.  I receive order one day to be transfer to Treasure Island.  There I was to report to the navy dependant-housing department.
My assignment was to inspect dependent housing.  This was not the job I was train for.
My supervisor their refused to allow me to go to a military hospital for a retest, I was very stressed out I just could not handle it anymore.  The supervisor and people did not care about my life or me.
My only primary concern was staying alive.
I had 15 years of Honorable Military Service.  I was a 4.0 sailor.
I had got promotion at every duty station I was assign to.

I have submitted additional document to support my application.

Documentation

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

Request and consent to release medical records, VA Form 10-5345(R), dated December 1, 2001 (2)
Letter from Department of Veterans Affairs, dated February 4, 2000
Patients rights (2 pages)
Advanced directives
Labels from prescription for Nelinavir Msylate 250 mg, Stavudine (d4T) 40 mg, Lamivudine 150 mg, Hydrocortisone 1% cream, Clotrimazole 1 % top cream
No Added Salt, 2000-3000 mg sodium diet
List of outpatient clinic appointments (7 pages)
Appointment reminder letters (10 pages)
Cancellation/reschedule of appointment (2 pages)
Statement in support of claim from Applicant, dated October 10, 2002
Medical pages (5 pages)
Statement in support of claim from Applicant, dated July 20, 2001 (3 pages)
Statement in support of claim from Applicant, dated June 2, 2003 (2) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19720225 – 19720305	COG
	Active:   USN			19720306 – 19741225	HON
		   USN			19741226 – 19781225	HON
		   USN			19781226 – 19820125	HON

Period of Service Under Review:

Date of Enlistment:  19820126		Date of Discharge:  19890222

Length of Service (years, months, days):

	Active:    07  01  27	Does not exclude lost time
	Inactive:  None

Age at Entry:  29			Years Contracted:  6

Education Level:  12			GCT:  27

Highest Rate:  BMC

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.95 (4)	Behavior:  3.95 (4)		OTA:  3.95

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), NDSM, VSM

Days of Unauthorized Absence:  196

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct -convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.  Discharged in absentia.

Chronological Listing of Significant Service Events:

820126:	Applicant reenlisted for 6 years.

870601:	Applicant to unauthorized absence 1630, 870601 or is it 2400, 870705.

870813:	Applicant arrested and booked into North County Jail, Alameda, CA on charge of attempted murder.  [Extracted from message dated 870917.]

870814:	Applicant tested positive for cocaine and amphetamines.

870903	Applicant released from custody on $10,000 bail and the charges were reduced to assault with a deadly weapon.  Next scheduled court appearance 871130.  [Extracted from message dated 870917 and Absentee Wanted by the Armed Forces form dated 871019.]

870916:	Applicant declared a deserter.

871031:	Applicant apprehended by Oakland Police on 1000, 871031.  Applicant returned to military control 1105, 871031 (149 days/apprehended).

880104:	Applicant to unauthorized absence 0730, 880104.

880108:	Applicant declared a deserter.

881013:	Civil Conviction:  Superior Court Oakland, CA for violation of assault with a deadly weapon with a force likely to produce great bodily harm in violation of California Penal Code.
Sentence:  Jail for 1 year.

881208:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction as evidenced by felony conviction on 881013 in the Superior Court of California for assault with a deadly weapon with a force likely to produce great bodily harm in violation of California Penal Code, misconduct due to drug abuse as evidenced by drug test of 870814 which tested positive for cocaine and misconduct due to commission of a serious offense as evidenced by two periods of unauthorized absence documented in service record entries (870705 to 871031 and 880104 to present).

881208:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

890106:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction, misconduct due to drug abuse, and misconduct due to commission of a serious offense.

890201:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.  Discharged in absentia.

890217:	Applicant found not drug dependent by Prison Health Services, Inc.

890221:	Applicant from unauthorized absence 0800, 890221. (47 days/surrendered).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 19890222 under other than honorable conditions for misconduct due to civil conviction (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).

Issue 1:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his diagnosed medical condition was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by a civilian conviction and unauthorized absence thus substantiating the misconduct.  It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  An upgrade to honorable conditions would be inappropriate.  Relief denied.  However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous ten years of honorable service.

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 
11 Jan 89 until 24 May 89, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON 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.
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