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NAVY | DRB | 1999_Navy | ND99-00133
Original file (ND99-00133.rtf) Auto-classification: Denied
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DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
ex-MRSN, USN
Docket No. ND99-00133

Applicant’s Request
The application for discharge review, received 981102, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to “with medical retirement”. The applicant requested a documentary record discharge review. The applicant did not list any person or organization as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991004. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.












PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. “I feel the Navy should have discharged me with a medical retirement. I was involved in a MVA on 8/29/95. From that time til discharge I wore a halo device and was kept on light duty (no overseas/shipboard duty, no flight operations, no bearing of arms, no operation of military vehicles, no PFC, and no assignment to areas where I would be exposed to inclement weather). It is my contention that the Navy should have medically discharged me shortly after my accident when they saw that I would be of no further use to them. Instead they waited and used 4 minor infractions as a reason for discharge. The 4 th infraction was in April 1986 yet I stayed in the Navy another 4 ½ months before I was discharge. My discharge was inequitable because it was based on prior incidents for which I had been judged and had already paid for by demotion, restriction or forfeiture. My light duty was continued in May 1986. Furthermore, to this date I continue to have problems with my neck and am unable to engage in gainful employment because of my serious handicap.”


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.
Medical records from Dr. R_ K_, Dr. G_ E_, Humana Shoals Hospital and Eliza Coffee Memorial Hospital.
Records from Helen Keller Memorial Hospital and Dr. A_ T_.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     821014 - 821208  COG

 Period of Service Under Review :
Date of Enlistment: 821209               Date of Discharge: 860820

 Length of Service (years, months, days):

         Active: 03 08 12
         Inactive: 00 00 00

 Age at Entry: 20                           Years Contracted: 4

Education Level: 12                        AFQT: 26

 Highest Rate: MR3

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM
Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

830627:  NJP for violation of UCMJ, Article 92: Possession and use of alcoholic beverages.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 20 days, reduction to MRSR. Reduction suspended for 3 months. No indication of appeal in the record.
830707:  Retention Warning by CO, USS Samuel Eliot MORISON (FFG-13): Advised of deficiency (Lack of maturity and professionalism as reflected by possession and use of alcoholic beverages.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

840416:  NJP for violation of UCMJ, Article 86: Unauthorized Absence. Violation of UCMJ Article 87: Missing movement.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
         
850617:  NJP for violation of UCMJ, Article 86: Unauthorized Absence. Violation of UCMJ Article 91: Disrespect to a superior petty officer. Violation of UCMJ Article 92: Dereliction of duty.
         Award: Forfeiture of $405.15 per month for 1 month, restriction and extra duty for 14 days, reduction to MRSN. Reduction suspended for 6 months). No indication of appeal in the record.

850923:  SNM transferred to PSD Bethesda, MD as patient at Naval Hospital, Bethesda.

851206:          Placed on limited duty by Medical Board, Naval Hospital Bethesda, MD until 860402, at which time he will be reevaluated.

851205:          Transferred to Naval Station Charleston, SC

 860404:  NJP for violation of UCMJ, Article 116: 1900, 830320 - Breach of the peace. Violation of UCMJ Article 107: 1900, 860320 - Destruction of government property.
          Award: Forfeiture of $150 per month for 1 month, reduction to MRSN. No indication of appeal in the record
860414:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

860501:  SNM placed on second period of limited duty by Medical Board, Naval Hospital Bethesda until 861101. Limited to CONUS bases, no sea duty, near major medical treatment facility where neurosurgical and orthopedic capability is available. Medical board summary recommends additional limited duty, but makes no mention of unfitness for further duty nor does it recommend forwarding the medical board to the Physical Evaluation Board for adjudication for possible separation for medical reasons.

860509:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
860529:  SNM subject of Drug/Alcohol Abuse report to NMPC.

860624:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

860525:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments: “I concur with the board’s recommendation that the respondent be separated from the Naval service
         due to commission of serious offenses. I agree with the board’s findings that the respondent did commit misconduct due to commission of serious offenses. His further retention in the service would not be in the best interests of the Navy. MRSN (applicant) has shown that he is not willing to conform with established rules and regulations, hence separation is the only alternative.”

860810:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860820 under other than honorable conditions for misconduct due to commission of a serious offense (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).

 A medical diagnosis, whether proper or improper is not an issue upon which the NDRB can grant relief. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB does not consider the circumstances surrounding the applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the applicant to be of sufficient nature to exculpate the applicant’s misconduct. In fact, the NDRB sees no connection between the applicant’s misconduct and his medical condition. The applicant’s misconduct began before his medical condition and continued after his condition was resolved. Relief is not warranted.

The applicant was not discharged for “4 minor infractions” as he asserts in the issue, rather he was discharged for commission of a “serious offense”. The term "serious offense" should not be confused with what is considered serious in the civilian world. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses: disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Although all of these offenses come under the broad UCMJ category of "serious offenses," some are clearly more heinous than others. A person in the military must abide by the standards as set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective
16 Dec 85 until 05 Oct 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     

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