DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

SMS
Docket No: 7243-08
27 March 2009

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

 

Subj: REVIEW OF NAVAL RECORD OF

  

Ref: (a) 10 U.S.C. 1552

Encl: (1) Case Summary
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a former
member of the Navy, applied to this Board requesting an honorable
discharge vice the other than honorable (OTH) discharge that was
issued on 18 July 1985.

 

2. The Board, consisting of Mr. agg bin Mr. Rake and

Ms. .amivemmereviewed Petitioner's allegations of error and
injustice on 24 March 2009, and pursuant to its regulations,
determined that the partial corrective action indicated below should
be taken on the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval records,
and applicable statutes, regulations and policies.

 

 

3. The Board, having reviewed all the facts of record pertaining to
Petitioner's allegations of error and injustice finds as follows:

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations
within the Department of the Navy.

b. Although Petitioner’s application was not filed in a timely
Manner, it is in the interest of justice to waive the statute of
limitations and review the application on its merits.

ec. On 29 January 1980, Petitioner enlisted in the Navy at age 17
with parental consent. At that time, he had completed ten years of
education and attained average scores on the entrance tests. He
subsequently began serving on board a naval vessel. On 18 June 1982,
he received emergency medical treatment and was initially diagnosed
with erratic tension pneumothorax in which a chest tube was inserted.
He was then transported to another ship and air-evacuated to a
military hospital when his lungs collapsed. On 29 June 1982, while
hospitalized, he was diagnosed with spontaneous pneumothorax in his
right lung and he continued to receive treatment that included a
chest tube. On 8 July 1982, a medical entry stated that he had

TT
numbness in his leg where he received an injection of demoral and
that femoral nerve injury may have occurred that may have taken
months to heal if it ever would. On 16 July 1982, a medical entry
noted that his spontaneous pseumothorax, he was doing well except for
the numbness in his leg, and was directed to return to his parent
command in a full duty status. On 27 July 1982, a medical entry
stated that he had recurrent spontaneous pneumothorax and was again
alir-evacuated to a military facility for treatment. The record shows
that he then continued to receive treatment for recurrent bilateral
pseumothorax at a military hospital until 9 October 1982, at which
time he was directed to return to his ship after 30 days of
convalescent leave. On 29 December 1982, he received emergency
medical treatment for chest pains, weight loss, and vomiting, and was
diagnosed as having a viral syndrome and directed to follow up with
another medical evaluation if his symptoms persisted.

d. On 12 January 1983, he began a 781 day period of unauthorized
absence (UA) that ended on 3 March 1985, when he surrendered. On
10 April 1985, he received a psychiatric evaluation during which
time he stated that no one cared and he went UA because he feared
that his lungs would collapse again while on ship. The evaluation
resulted in no psychiatric diagnosis. On 19 April 1985, he received
a physical examination that found him qualified for discharge. On
22 April 1985, he received a medical evaluation that noted his
medical history and he stated that he was not in good health and got
sick when working. The medical evaluation noted that he had scars on
his back, pain to his chest, and concluded that it was a normal exam.
On 7 May 1985, medical treatment provided by the brig sickbay noted
his medical history of spontaneous pseumothorax, bilateral plurodesis
(surgeries), that he had a productive cough and general malaise, and
concluded by prescribing medication and an x-ray.

e. On 5 June 1985, Petitioner was convicted by a special
court-martial of the 781 day period of UA. His sentence included
forfeitures of pay, confinement at hard labor, and reduction in rank.
On 6 June 1985, his commanding officer initiated administrative
separation by reason of misconduct due to commission of a serious
offense. In connection with this processing, he acknowledged that
separation could result in an OTH discharge and waived the right to
have his case heard by an administrative discharge board (ADB). His
commanding officer endorsed this action by recommending an OTH
discharge based on the UA and did not include information regarding
his medical history. On 1 July 1985, the Secretary of the Navy
approved the recommendation and directed an OTH discharge by-reason
of misconduct due to commission of a serious offense. On
18 July 1985, he was so discharged.

f. Petitioner states in essence that his lungs collapsed three
times while at sea, he was hospitalized for eight months, he was then
directed to return to his ship that was scheduled to deploy again,
and that he was afraid that his lungs would collapse again while at
sea. With his application, he provided a letter dated i4 May 2007,
from his physician, Dr. L---, who states that Petitioner's extensive

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and complicated medical history began while he was in the Navy and
because of the poor technology and treatment available at the time on
board a ship, the outcome was very poor. Dr. L--- concluded with
Petitioner's diagnoses of status post multiple spontaneous
pneumothorax with multiple plueraldesis resulting in restrictive and
obstructive pulmonary disease at a premature age; chronic pain
syndrome secondary to the above diagnosis; and complete disability
secondary to the two prior diagnoses.

g. Regulations authorize issuance of an OTH discharge for members
separated by reason of misconduct. Regulations also authorize a
general discharge in such cases.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial relief.
Specifically, the Board finds that his discharge was processed in
accordance with regulations, but notes that he had no other offenses
except for the one for which he was discharged, and finds that the
separation authority was not aware of the extenuating circumstances
that led to his period of UA. Specifically, bilateral spontaneous
pneumothorax that began occurring more than two years after he
enlisted, and after he was directed to return to his ship even though
this condition reoccurred and he continued to suffer from
complications. In this regard, the Board finds that the record
supports his explanation of events that led to his period of UA. The
Board also considers the letter that was provided to the Board from
his physician. Therefore, given his misconduct, the Board concludes
that as a matter of clemency, he should be granted partial relief and
as such his discharge should be changed to general.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that he
was separated with a general discharge on 18 July 1985, vice the OTH
discharge that was issued on that date.

b. That a copy of this Report of Proceedings be filed in
Petitioner’s naval record.

c. That upon request, the Department of Veterans Affairs be
informed that Petitioner's application was received by the Board on
25 July 2008.

4. It is certified that a quorum was present at the Board's review
and deliberations, and that the foregoing is a true and complete
record of the Board's proceedings in the above entitled matter.

‘ (Avon \
ROBERT D. ZSALMAN BRIAN ie ea
Recorder Acting Recorder

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5. Pursuant to the delegation of authority set out in Section 6(e) of
the revised Procedures of the Board for Correction of Naval Records
(32 Code of Federal Regulation, Section 723.6(e)) and having assured
compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference
(a), has been approved by the Board on behalf of the Secretary of the

WO Desa

W. DEAN PFEITWKF
Executive Diracko