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Docket No. ND05-00505

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

FOR OFFICIAL USE ONLY

 ex-BMSR, USN
Docket No. ND05-00505

Applicant’s Request

The application for discharge review was received on 20050131.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 3 to 2 that the characterization of discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDCUT, authority: MILPERSMAN 1910-140.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I constantly complained of headaches after a fall aboard the USS Seattle.  My headaches were severe but no one seems to believe me.  Upon seeking treatment at a local hospital; a scan of my head confirmed a brain tumor.  This tumor was diagnosed as medulloblastoma and it was malignant.  I believe this was the direct result which lead to my discharge (UOTH)”

Applicant’s Remarks:  “I believe if the tumor had not exist my future in the Navy would have continued.  I loved the Navy and wish I could have fulfilled my obligation.”

Documentation

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

Applicant’s DD Form 214  (Member 4)
Letter from Virginia Hematology Oncology, PLLC, S. G_ S_, MD, dtd December 1^st, 2004
Consultation, Consulting Physician: D_ A. V_, MD, dtd November 11, 2004
Consultation, Consulting Physician: D_ A. V_, MD, dtd November 8, 2004 (2 pages)
Operation Procedures, Sentara Norfolk General, dtd November 4, 2004 (4 pages)
Fax Transmittal Form, Virginia School of Technology, dtd May 9, 2005
General Power of Attorney, dtd June 4, 2004 (4 pages)
Virginia Hematology Oncology, PLLC, S. G_ S_, MD, dtd December 1, 2004
Fax Cover Sheet, Children’s Hospital of The King’s Daughters, S_ M, LCSN, dtd May 9, 2005
Acceptance of Application for Discharge Review Letter, Processing Section, J. M_, dtd February 7, 2005
PowerChart, Children’s Hospital of The King’s Daughters, dtd March 9, 2005 (12 pages)
Fax Cover Page, VA VET Services, undated
Evaluation Report Counseling Record, January 10, 2003 until July 15, 2003  (2 pages)
Exclusion Letter, Commanding Officer, Naval Station Norfolk, dtd October 13, 2004 (2 pages)
Navy Standard Integrated Personnel System, Reporting Information Report, dtd January 27, 2003
USS SEATTLE, Sick in Quarters, dtd, June 20, 2004, expiration dtd June 21, 2004
USS SEATTLE, Light Duty, dtd, July 14, 2004, expiration dtd August 11, 2004
Restricted Orders, Commanding Officer, USS SEATTLE (AOE 3), dtd September 02, 2004  (3 pages)
Extra Duty, Commanding Officer, USS SEATTLE (AOE 3), dtd September 02, 2004 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020531 – 20021007		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021008		Date of Discharge:  20041013

Length of Service (years, months, days):

	Active:    02  00  06  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  36

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3) 		Behavior:  2.0 (3)		OTA:  2.33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

040114:	Medical evaluation by N_ G. K_, LT/MC, USNR:  History: 19 year old male with complains of vomiting two times today; patient was seen for constant body aches & nausea & headaches – patient was give Tylenol 500mg & Pepto Bismol – patient has history of headaches since he was 15 years old.  Patient is experiencing his eyes beating with his heart (in his head).  Patient states that his headaches started last night with the temporal area, with the pain currently up around the eyes.  No numbness/tingling through hands; patient had CAT scan done on his head – found nothing – patient states that one of the signs of his headaches is a nosebleed; patient does not keep track of his headaches.  Patient denies any diarrhea.
	Assessment:  headaches severe, r/o migraine headaches
	Plan:  Follow with Dr. V_
	          Pheaergan 25mg IM 
	          Pheaergan 25mg po gloh #2
	          SIQ times 24H – head & chow privileges only
	          Schedule with Dr. V_ about Discussing Headaches

040115:	Applicant’s follow-up evaluation given by N_ G.  K_, LT/MC, USNR:  Member follow up SIQ  States feels much better.  Still has slight headaches.  Scheduled appt with Medical Officer for Monday 01-19-04 @ 1230.

040117:	Medical evaluation by N_ G. K_, LT/MC, USNR:  History – 19 year old active duty male here to discuss headaches.  Patient has had headaches since 7^th grade.  Patient had a head CT don before Navy which was normal.  No family history of migraines.  Patient states headaches occur 3 times a week, relieved by sleep.  Describes them as starting occipital & moving to temporal.  Occasionally will have nosebleeds during headaches.  Headaches can be precipitated by eating pork sometimes.  Pain is throbbing, positive photophobia, positive lightheadedness.  No [..sic..] last episode was associated with vomiting but patient thinks that was probably the flu & not a headache.  No aura.  No history of headache medication.
	Assessment:  rule out migraine headaches
	Plan:  1) medical to continue to monitor headaches, 2) possible future consult to Neuro headache clinic.

040715:	Counseling:  Advised of deficiency (While an Light Duty you are required to contact medical three times a day to let them know if you desire to eat breakfast, lunch and dinner.  Failing to do so will result in you going without that and or any meal for that day.  You must contact medical in a timely fashion in order to give them time to get your meals.  If medical allows you may check your e-mail at this time.  This will be the only time you may check your e-mail unless otherwise specified by medical and you will never contact them after 2200 unless for a medical issue), notified of corrective actions and assistance available.

040902:	NJP for violation of UCMJ, Article 91:
	Award:  Forfeiture of $693.00 pay per month for 2 months, reduction to E-2.  No indication of appeal in the record.

040913:	Medical Department USS SEATTLE (AOE-31):  Three-day blood pressure check.  Patient has headache on waking, patient does not seek medical attention “I just go to work,” sometimes it’s bad, sometimes it’s not.”  Complains of headache now, Tylenol given 325mg, 0849

040925:	NJP for violation of UCMJ, Article 86:
	Specification: Failure to go to appointed place of duty.
	Violation of UCMJ, Article 91:
Specification: Failure to obey an order from a second class Petty Officer.
Violation of UCMJ, Article 92: 
Specification: Failure to obey a lawful written order.
Violation of UCMJ, Article 107:
Specification: False official statement.
	Award:  Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

040926:	Forfeiture of pay and reduction in pay grade restriction awarded at NJP on 040925 vacated due to continued misconduct.

041002:	NJP given on this date according to the Awards page, NAVPERS 1070/604 (Rev. 7/91).  No additional information was provided in Applicant’s Service Record.

041013:	DD-214:  Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Service Record did not contain the Administrative Discharge package. 
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041013 by reason of misconduct due to a pattern of misconduct (A) under other than honorable conditions.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that the misconduct leading to his discharge was the result of an undiagnosed malignant brain tumor.  According to the evidence of record, the Applicant first reported to the ship’s medical officer on 20040114 complaining of headaches with nausea and vomiting.  The Applicant returned on 20040117 and 20040913 complaining of similar symptoms.  The Applicant was awarded nonjudicial punishment (NJP) on 20040902 for a violation of UCMJ Article 91.  The Applicant was awarded a second NJP on 20040925 for violations of UCMJ Articles 86, failure to go to appointed place of duty, 91, failure to obey lawful order from a second class petty officer, 92, failure to obey written order, and 107, false official statement.  Lastly, the Applicant was awarded a third NJP on 20051002 for unknown offenses.  The Applicant was discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct on 20051013.  Thirteen days later, on 20051026, the Applicant presented to DePaul Hospital with symptoms of nausea, vomiting, extreme headaches, ataxia, and visual loss.  A subsequent CT scan revealed a large cerebellar tumor and hydrocephalus.  The Applicant underwent surgery to remove the tumor on 20041104 and intraoperative pathology was returned as medullablastoma, a malignant tumor.  

An examination of the evidence of record convinced the Board that relief is warranted on equitable grounds.  Specifically, the Applicant submitted several letters from his civilian physicians indicating that in their expert medical opinions, based on the size and mass effect of the tumor and in conjunction with the hydrocephalus, it is likely that the Applicant’s behavior had been affected for quite some time, possibly one year to two years.  Additionally, an Evaluation Report and Counseling Record dated 20040707 indicated the Applicant was an average sailor, rated as a solid “3.00”, with written comments such as “SN S_ has come about smartly!” and “SN S_ has tapped into his limitless potential and is developing into one of RASE division’s top performers.  Highly recommended for advancement and retention.”  The NDRB also noted that all of the misconduct of record occurred between August 2004 and October 2004, a period no longer than 60 days before the discovery of the malignant tumor.  Such evidence convinced a majority of the NDRB that there is a strong preponderance of the evidence to suggest the Applicant’s misconduct was the result of the undiagnosed brain tumor.  The evidence supports the Applicant’s contention that this tumor adversely affected his mental faculties and directly contributed to his misconduct and subsequent discharge.  As such, by a vote of 3-2, the NDRB concluded that relief is warranted on equitable grounds and voted to change the discharge to General (Under Honorable Conditions).

Although the Applicant requested a change to Honorable, the NDRB concluded a General (Under Honorable Conditions) discharge is more appropriate.  This conclusion was based on the fact that there was no medical evidence that could establish the Applicant’s misconduct as the exclusive result of the malignant brain tumor.  Additionally, key evidence was missing from the Applicant’s service record because the Board did not have a complete administrative discharge package.  Based upon these factors, the majority of the NDRB concluded that a General (Under Honorable Conditions) discharge is a more appropriate characterization of service.

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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.   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 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 “http://Boards.law.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:

		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