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NAVY | BCNR | CY2006 | 09097-06
Original file (09097-06.rtf) Auto-classification: Denied
                 DEPARTMENT OF THE NAVY
         BOARD FOR CORRECTION OF NAVAL RECORDS
 2 NAVY AN.NEX
          WASHINGTON DC 2O37O-5100


        
         JRE
 Docket No. 09097-06
7 December 2007






This is in reference to your application for correction of your naval record pursuant to the provisions of t i tle 10 of the United States Code, section 1552.
A three-me mb er panel of the Board for Correct i on of Naval Records, sitting in executive session, considered your application on 8 November 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies.
After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.
The Board found that you served active duty in the US Army from 6 August 1985 to 21 November 1991, and later served in the Army National Guard. The Department of Veterans Affairs (VA) awarded you a combined disability rating of 10% effective 22 November 1991 for residuals of an ankle fracture, bilateral hearing loss and a deviated nasal septum incurred during your Army service. The VA denied your request for service connection and disability
 compensation for a chronic back injury, a chronic cervical spine condition, tinnitus, hemorrhoids, psoriasis of the groin area, scabies, ingrown toenail and posttraumatic stress disorder. You enlisted in the Navy on 21 February 1996. It appears that your enlistment was fraudulent, in that you failed to fully disclose your pertinent Army and VA medical history and disability claims history. Specifically, you falsely denied having a history of nervous trouble of any sort, depression or excessive worry, recurrent back pain, skin diseases, trick or locked knee, venereal disease, foot trouble, motion sickness, hearing loss, ear trouble, hemorrhoids, posttraumatic stress disorder, psychotherapy for bursts of anger following your return from Saudi Arabia, adjustment disorder with work inhibition, and swollen or painful joints. You also falsely denied that you had applied for VA disability benefits, and that you were receiving disability Compensation from the VA. It appears that you may have continued to receive disability compensation from the VA after you enlisted in the Navy.
You were evaluated by a medical board on 1 April 2002 and given diagnoses of posttraumatic stress disorder, existed prior to entry, service aggravated; and, personality disorder with antisocial, narcissistic, and passive aggressive features. The medical board recommended that your case be referred to the Physical Evaluation Board.
On 30 July 2002, you were advised that you were being considered for separation by reason of misconduct with a discharge under other than honorable Conditions due to your wrongful use of marijuana, commission of the serious offenses of larceny and assault, and conviction by civil authorities of two counts of assault in the third degree, one count of assault in the second degree, and one count of felony harassment evidenced by domestic violence against your wife. You pleaded guilty to civilian charges in return for the state’s agreement to drop a charge related to your trying to hire someone to murder your wife. You were sentenced to confinement in the state penitentiary for seventeen months. After being advised of your rights in connection with the proposed discharge, you waived your right to consult with counsel; submit statements to an administrative discharge board (ADB) or the separation authority (SA) in lieu of an ADB; obtain copies of documents that would be forwarded to the SA; request an ADB; and request representation before an ADB by qualified military counsel, or by civilian counsel at your own expense. The recommendation for discharge was forwarded to the SA on 21 August 2002. Your commanding officer stated in the recommendation that given your history of violence against your wife, from whom you were prohibited having any contact for a period of ten years, abuse of marijuana, theft of government property, misuse of government credit cards, civilian conviction of driving while intoxicated and subsequent failure to report the conviction to the Navy, your life was out of control and incompatible with naval service. The recommendation for discharge was approved, and you were discharged by reason of misconduct on 27 September 2002, with a discharge under other than honorable conditions. Following your discharge, the VA determined that your service in the Navy was under dishonorable conditions, and that you were not insane when you committed the offenses which resulted in your discharged under other than honorable conditions






The Board rejected your unsubstantiated contention to the effect that you were denied due process when being considered for discharge by reason of misconduct As noted above, you were advised of your rights in connection with the proposed discharge, and you waived those rights. There is no basis for concluding that the waiver was other than knowing and voluntary. The Board also concluded that the characterization of your service as under other than honorable conditions was warranted by your extensive record of misconduct. The Board was not persuaded that you lacked mental responsibility for your actions, or that your misconduct was significantly extenuated or mitigated by the effects of your diagnosed mental disorders. The Board noted that although you might have been separated or retired by reason of physical disability had you not committed those acts of misconduct, a discharge by reason of misconduct generally takes precedence over and precludes disability separation, as it did in your case.
In view of the foregoing, your application has been denied. The names and votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.
Sincerely,



W. DEAN PFEIFFER
Executive Director

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