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NAVY | DRB | 1999_Navy | ND99-01071
Original file (ND99-01071.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND99-01071

Applicant’s Request
The application for discharge review, received 990803, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing. The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 000420. 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: ENTRY LEVEL SEPARATION/Entry level performance/conduct, authority: NAVMILPERSMAN, Article 3630200.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I should have gotten a medial discharge because I was not medically qualified to serve. Although I was cleared medically to enter the service, through aggravation in basic training. I was unable to perform physically. I feel that my discharge should have been a medical especially since I had to receive surgery on my knee only four months after being released.

2. During this period the Petty Officer over me accused me of refusing to train. This was not true I was simply following the written orders of the Navy Doctor that was treating my condition. I have never had a problem with authority before or after the military. I simply knew what my limitations were and what discomfort I was experiencing at that time. I felt it was in the best interest to follow the instructions of my appointed doctor.

3. IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.3, Equity of Discharge, we ask the Board to consider the following medical/physical factors that directly impaired the applicant's ability to serve:

•         A review of the applicant's service medical records indicates that the day he began his enlistment on November 23, 1987, he was assigned 24 hours bed rest for the flu. It is reasonable to assume that someone does not recover the strength needed to complete the strenuous physical and mental exercise demanded by recruit training within a 24-hour period.
•         Less than two weeks later, on December 5 th , 1987, the applicant reported to sick bay with throat, cough and chest pain. Most likely the residuals of the flu.
•         Finally, the applicant reported to sick bay with knee pain on December 7, 1987, and was given 3 days light duty. It is important to note that two months prior to the applicant's enlistment, on November 23, 1987, the applicant had undergone knee surgery. Eleven days later he was discharged.
4. As a result, we ask the Board to consider the applicant's discharge IAW SECNAV Instruction 5420.174C of 22 August 1984 (MDR 1984), enclosure (1), chapter 9, paragraph 9.2, Propriety of Discharge.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Summary of Evidence and Adjudicative Actions (page 2)
One page of applicant's medical record
Partial copy of Hearing Officer's Decision dated December 13, 1994
Letter from North Hill Orthopedic Surgery Group dated May 15, 1989

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     871106 - 871122  COG

 Period of Service Under Review :
Date of Enlistment: 871123               Date of Discharge: 871221

 Length of Service (years, months, days):

         Active: 00 00 29
         Inactive: None

 Age at Entry: 25                          Years Contracted: 8

 Education Level: 12                        AFQT: 46

 Highest Rate: CR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

ENTRY LEVEL SEPARATION/Entry level performance/conduct; authority: NAVMILPERSMAN, Article 3630200.

 Chronological Listing of Significant Service Events :

871203:  Performance remarks: Failed initial PT test. Fell out on run. Counsel SR on importance of meeting phys. requirements, encouraged to work on run during company PT _______.
871205:  Performance remarks: SR reported by CWO2 at Navy Hospital for having an arrogant attitude and stating that he wants to quit. SR reported back to company and informed CO that he "refuses training", CC counsel SR on importance of not refusing training. Explained RE-4 to SR but he states that he knew friend that got RE-4 chance. SR feels he knows the law and can quit. He refuses training and is a bad influence on rest of CO. CC request CPO recommend SR be sent to STD Sleeper, CC request DOS Recommend _AB.
         Performance remarks CDO: Recruit referral for reported very poor attitude towards Medical Staff member, CWO4 P_, which had prompted phone call to the Company Commander & DPO. Allegedly also indicated desire to quit. CC reports this recruit is "Sea Lawyer" who knows and wants to _______ all anger to his own personal advantage - so he thinks. CC has fully explained the consequences of an ELS with RE-4 to no avail. Refer to DOS for further action

871207:  Performance remarks: Div 7 screening: SNR expresses a poor attitude towards training & authority. Recruit has little military bearing and feels he wants to quit. Recruit does not like to be yelled at and can't accept following orders. Recruit is a physical wreck and is constantly at sick call. Refer to Division officer issued LOW and return to company.
 Seventh Division Officer - SNR referred for expressing a desire to quit. While talking to SNR the story emerged that on Saturday he went to the emergency room where the physician's assist, CWO4 P_ talked to him about the proper use of emergency sickcall, SNR then told him that he should talk to his patient's a little better. When he returned to his company he told his CC's he quit. The CDO placed him in sleepers. While at sleepers, SNR complained that PO1 M_ told him he had not more constitutional rights. Counseled SNR that he signed a contract and swore to obey those placed in authority over him. Counseled SNR that his remarks to CWO4 P_ could be construed as disrespect to a superior officer which is a violation of the UCMJ. Further explained that when he signed his contract he gave up some constitutional rights such as certain political activity and the debate over the urinalysis program. SNR never actually told me that he refuses training, but then stated he did not think he could take it mentally, counseled SNR that boot camp was meant to be tough and that there was no reason he could not do well, when I told SNR to return to his company, he asked to speak with a chaplain. After he returns from the chaplain, return to his company.
Seventh Division Officer- SNR approached me on the quarterdeck when he was returning from chow and stated his desire to see his lawyer. As per phonecon, will send SNR to legal with hardcard and RPR to see MC C_.
SNR reported to legal in a despondent state. States that his mother has deteriorating arthritis in her knees & will be crippled for life. SNR is very concerned for mother's well being and care. States that he wants to go back to Akron and care for his mother. He will continue to refuse training and desires RE-4 separation. Recommend RE-4 sep for violation of LOW issued 87Dec07 and RAB.
Seventh Division officer - SNR returned from legal and the chaplain feeling much better. SNR wants to go home now and be with his mother. Explained the benefits of continuing training and the disadvantages of quitting and an RE-4, but he still wants to go home. Will send him to STD sleepers tonight.
871207:  Counseling: Advised of deficiency (unsatisfactory performance by your failure to adapt, refusal to continue training, minor discipline infractions, lack of reasonable effort), notified of corrective actions and assistance available.

871208:  Seventh Division officer - SNR returned from sleepers and continues to refuse training because he wants to go home to his mother. SNR has violated his LOW, therefore refer to RAB. Recommend ELS/RE-4.

871210:  AMTO Screening: SNR is a total misfit, he is very overweight and presents the maturity level of a fourteen year old. SNR has no respect for authority and feign illness whenever physical exertion is required. There is no place in the Navy for this man. Explained the impact of an RE-4 discharge. SNR is in violation of LOW. Referred to RAB. Recommend RE-4/ELS.
         RAB screening: SNR wants to quit. During the screening SNR stated that he have no desire to stay in the Navy. SNR have made many excuses for quitting one reason or another. Board rec RE-4 x ELS.

871211:  Applicant notified of intended recommendation for discharge by reason of entry level performance and conduct. Advised least favorable characterization of service would be entry level separation.

871211:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
871215:  Commanding officer directed an entry level separation by reason of entry level performance/conduct. Commanding officer’s comments: (verbatim): CR (applicant) has been counseled regarding the noted deficiencies but continues to demonstrate a lack of reasonable effort. There has been no improvement in motivation in response to counseling. Given the minimal potential for future productive naval service, Entry Level Separation is directed.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 871221 with an entry level separation by reason of entry level performance/conduct (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).

In response to applicant’s issues 1-3, after reviewing the applicant’s record, the Board found the applicant had no desire to stay in the naval service. The applicant was counseled for unsatisfactory performance for failure to adapt, refusal to continue training, minor discipline infractions, and lack of reasonable effort. The record also contains applicant’s statements concerning his desire to “go home now and be with his mother”, that “he will continue to refuse training and desires RE-4 separation” and that he “did not think he could take it (ie training) mentally”. In addition, the applicant signed a statement of awareness at the time of his discharge and did not object to the type of discharge received. Relief denied on these issues.

 The applicant’s representative submitted the following as issue 4: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities 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. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560A), 15 June 1987 until
14 Aug 91, Article 3630200, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ENTRY LEVEL PERFORMANCE CONDUCT
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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