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NAVY | DRB | 1999_Navy | ND99-00544
Original file (ND99-00544.rtf) Auto-classification: Denied


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

ex-MMFN, USN
Docket No. ND99-00544

Applicant’s Request
The application for discharge review, received 990308, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 000110. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “PATTERN OF MISCONDUCT” vice “MISCONDUCT”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Attached medical evidence show sleep apnea. I maintain I have had this problem for years. My discharge was based on NJP's suffered as a result of sleeping on watch twice, missing ships movement due to oversleeping on 1 occasion and smoking on watch, this I did in an effort to stay awake.
During one of my NJP's the Captain stated that he wanted me checked through medical for a possible sleep disorder, but for whatever reason, this was never accomplished. Since my discharge I have lost a couple of jobs due to this condition and finally recognized that I have a medical problem. I maintain that sleep deprivation as a result of sleep apnea was the root source of my problem that resulted in my NJP's and ultimate discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's medical document from the Summit Sleep Disorder Center (6 pages)
BUPERS discharge authorization (MSG 251842Z Feb 94)
COMSUBRON 8 discharge recommendation (MSG161001Z Feb 94)
Applicant's Notification of Discharge Action dated 11 Jan 94
Applicant's Employer (Mortgage Investors Corp) undated letter concerning sleep apnea
Applicant's Pastor (M_ E. H_) letter dated Jul 23, 1997
Applicant's Associate Pastor (C_ G_) letter dated Jul 21, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880803 - 881226  COG

 Period of Service Under Review :
Date of Enlistment: 881227               Date of Discharge: 940315

 Length of Service (years, months, days):

         Active: 05 02 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (20 months extension)

 Education Level: 12                        AFQT: 92

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (6)     Behavior: 3.53 (6)                OTA: 3.5

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, NEM, NASR, MUC(2)

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

911010:  NJP for violation of UCMJ, Article 92: failure to obey lawful order or regulation.
         Award: Correctional custody for 30 days, reduction to E-3. No indication of appeal in the record.

911015:  Retention Warning from USS BALTIMORE: Advised of deficiency (failure to properly stand watch - found asleep on maneuvering watch station.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920326:  NJP for violation of UCMJ, Article 92: failure to obey order or regulation.
         Award: Forfeiture of $100 per month for 1 month, reduction to E-2 (suspended for 60 days). No indication of appeal in the record.

920326:  Retention Warning from USS BALTIMORE: Advised of deficiency (disobeying a direct order - found smoking in the machinery room by the Commanding Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940110:  NJP for violation of UCMJ, Article 86: unauthorized absence, violation of UCMJ Article 87: missing movement.
Award: Extra duty for 30 days, reduction to E-3. No indication of appeal in the record. [Extracted from COMSUBRON EIGHT msg 161001Z Feb 94]
940111:  COMSUBRON notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by service record.
940201:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except right to make statement and the right to obtain copies of the documents used to support the basis for the separation.
9402XX:  Applicant's Statement: "I, J_ A. T_, make the following free and voluntary statement to YN1(SS) T_, whom I know to be SUBRON EIGHT legal coordinator. I make this statement of my own free will and without any threats or promises extended to me. I fully understand that this statement is given concerning my knowledge of my recommended OTH for discharge. I object to the OTH recommendation for my discharge because a few unrelated incidences during my naval career. After 5 years of service, almost 4 on the USS BALTIMORE , I feel it to be unjust to separate me from the Navy. Many hours and many years of hard work with a few errors, and now I'm facing an Other Than Honorable discharge due to imperfection. For this I do not, in my mind, deserve an OTH for a discharge decision. Consider in 5 years the time that I shined and brought good work to the USS BALTIMORE not just the few mistakes included in my service time. I do not object to discharge, but to the characterization of. Respectfully, J_ A. T_, USN."

940216:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Commanding officer’s comments verbatim): "After thorough review of the entire case of the SNM, I have determined that the facts and circumstances in this case warrant discharge with a characterization of service of other than honorable conditions.

940225:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940315 under other than honorable conditions for misconduct due to a pattern of misconduct (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issue 1, 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 to be of sufficient nature to exculpate the applicant’s misconduct. Relief is not granted on the basis of this issue.

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. Although there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 92, Failure to obey a lawful order] if adjudged at a Special or General Court-Martial.

C. 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.

D. 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.

E. 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 St SE Rm 309
                  Washington, D.C. 20374-5023     


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