Author: CAP
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Docket No. ND05-01014

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

FOR OFFICIAL USE ONLY

 ex-HM2, USN
Docket No. ND05-01014

Applicant’s Request

The application for discharge review was received on 20050602.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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, 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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter: 

“I am requesting the change to General/Under honorable conditions.  Due to the following reasons:

(A) First off, I want to apologize to the board for my behavior during my very stressful divorce.  I had learned that my wife at that time.   Was having an affair with a married Sgt in the army.  I was a first time dad with 3 daughter’s that depended one me for everything.

(B) I was told to stay away from my family and leave my house.  All because My ex-wife want to have the house to live in with this Sgt.  I was asked on numerous of times to pick the children up at daycare and drop them off at home.  Which later I find out was against a legal order on 2-3 times.

(C) I was placed in the Brig for 2-3 days, by the JAG officer Lt N_.  When the Commanding Officer found out, They quickly released me.  Then Confined me to a room in the hospital on the 5^TH floor with a guard on me 24 hrs a day.

(D) That was not good enough so they sent me to Base confinement for 3-4 months, with no liberty or leave.  I went through my divorce while confined to a legal hold room.  Then I got sick and they placed me in the locked ward in the hospital.  I was later released from Active duty.  Serving over 12 years in the Navy, attached mostly to the Marine Corps as a Hospital Corpsman.

(E)  In over 12 years , I have not been in trouble.  I was rated in the top 2 percent for my NEC.  Fought in Desert Storm/Desert Shield with the 10^th Marines .  Gave over 12 years of my life to defend my Country without and questions ask.  My Service Record can speak for its self.

(F)  Not only did I not Receive payment on discharge, I was told that I could not use any Military base commissary and/or exchange.  I have recently learned that I have contracted the desert storm virus, but I cannot seek medical attention at any VA due to my discharge status.

(G)  I bring to your attention to by DD-214, Every job that I obtain was to help save lives.  In one way or making someone life better.  Don’t let a young father poor judgment during a very stressful time follow him the rest of his life.  I served my country Pride, and Faith over 12 years.  I would do it right now, if my country needed a Brave Hospital Corpsman.  I am still giving back to my country my working at St Vince Catholic Hospital, in Jacksonville Florida.  I am just requesting the board to change my status to Genera/Under Honorable Condition so that I can Hold my Head up Pride again and receive medical help.  I see men from my unit over in Iraq dying and that truly hurts, Because those men and women depended on me.

Respectfully Yours, 
[signed] Mr. D_ A. H_ (Applicant)”

Documentation

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

Letter from Applicant dtd September 13, 2005
Applicant’s DD Form 214 (Member 4 and 1)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19860224 – 19860303		COG
	Active:   USN 			19860304 – 19900301		HON
Active:   USN 			19900302 – 19941201		HON

Period of Service Under Review:

Date of Enlistment:  19941202		Date of Discharge:  19981228

Length of Service (years, months, days):

	Active:    04  00  27  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  29

Years Contracted:  6

Education Level:  12				AFQT:  47

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (4) 	Behavior:  3 (4) 		OTA:  3.25 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Fleet Marine Force Ribbon (2^nd), Combat Action Ribbon , National Defense Service Medal, Sea Service Deployment Ribbon (2^nd), Navy Pistol (Marksman) Ribbon, Good Conduct Medal for period ending 910131

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142.

Chronological Listing of Significant Service Events: 

941202:	Reenlisted this date for a term of 6 years.

960215:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order after repeated counselings.
Award:  Restriction and extra duty for 30 days, reduction to next inferior pay grade.  Punishment suspended for 6 months. No indication of appeal in the record. [Extracted from Evaluation Report & Counseling Record dtd March 6, 1996]. 

980415:	Military Protection Order issued concerning allegation of domestic violence.

980512:	Military Protection Order issued concerning allegation of domestic violence and harassment.

980520:	Military Protection Order issued concerning allegation of domestic violence and harassment.

980705:	Applicant arrested in Clay County, Florida on 5 July 1998, on a charge of aggravated assault, Florida Statue 784.021.  Case was deferred to military authorities for adjudication.  [Extracted from Commanding Officer’s letter of 981209.]

980720:	Charge preferred on 20 July 1998: Violation of the UCMJ, Article 86 (2 specifications), unauthorized absence; Article 92 (3 specifications), failure to obey a lawful order; Article 109 (2 specifications), damage to property other than military property of a value over $100.00; Article 111, reckless driving; Article 128, (7 specifications) assault; Article 134, communicating a threat.  [Extracted from Commanding Officer’s letter of 981209.]

981001:	Additional charges preferred on 01 October 1998: Violation of the UCMJ, Article 107 (2 specifications) false official statement and Article 128 (4 specifications) assault.  [Extracted from Commanding Officer’s letter of 981209.]

981209:	Commanding Officer, Naval Hospital, Jacksonville, recommended discharge with a under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “HM2 H_ (Applicant) has committed misconduct due to commission of a serious offense as evidence by enclosures [(2) Charge Sheet (preferral date 20 July 98, (3) Additional Charge Sheet (preferral date 01 Oct 98), (4) Investigating Officer’s Report].  The misconduct includes but is not limited to violations under the UCMJ for failure to obey orders, reckless driving, communicating a threat, destruction of property and numerous specifications under Article 128, for assault.  This misconduct is the result of ongoing domestic discord (violence) between HM2 H_ (Applicant) and his ex-wife.  Additionally, enclosures [(8) Statement of J_ M. H_ of 23 Nov 98 and (9) Statement of FCC T_ J. M_ of 23 Nov 98] exhibit HM2 H_’s continued domestic violence.  The serious nature of these offenses warrant immediate separation.  Therefore, I strongly recommend that HM2 H_ (Applicant) be separated from the U.S. Navy with a characterization of service as Other Than Honorable.”

981217:	Commander, Naval Base, Jacksonville, directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

Service Record contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981228 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of 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 and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 92 UCMJ, a serious offense.  The Applicant was also arrested by civil authorities and charged with aggravated assault.  Charges were preferred against the Applicant for violations of Articles 86, 92, 109, 111, 128 and 134.  Violations of Articles 109, 111, 128 and 134 (communicating a threat) are also considered serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant implies that his problems in the Navy can be attributed to the stress he experienced due to his wife’s affair and having children that depended on him.  The Applicant further indicates the Board should consider that that he was a young father with poor judgment.   While the Applicant may feel that his marital stress and immaturity were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant implies that he was wrongly confined.  There is no evidence in the record, nor did the Applicant provide any evidence, to support the contention that the Applicant was wrongly confined.  However, even if the Applicant could show that he was wrongly confined or restricted, such proof would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.  

The Applicant contends that he served over 12 years without being trouble, fought in Desert Storm/Desert Shield and that he tried to help save lives.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s Commanding Officer recommended the Applicant’s discharge for misconduct due to the commission of a serious offense indicating that the Applicant’s misconduct included reckless driving, communicating a threat, destruction of property and “numerous specifications under Article 128 for assault.”  The Board found the Applicant’s discharge and characterization were warranted despite the Applicant’s prior performance and service.   Relief denied.

The Applicant contends that he is still “serving my country” by working at a hospital.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Relief denied.

The Applicant contends that he was told he could not use the commissary or exchange and can not seek VA treatment.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or any benefits or privileges which are extended to active duty, reserve or retired members.  Relief on this basis is denied.

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), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey an order/regulation, Article 109, destroying property other than military, Article 111, reckless driving, Article 128, assault and Article 134, communicating a threat.

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

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

E.  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