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NAVY | DRB | 2000_Navy | ND00-00226
Original file (ND00-00226.rtf) Auto-classification: Denied


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

ex-JOSR, USN
Docket No. ND00-00226

Applicant’s Request
The application for discharge review, received 991123, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. The issues involve medical treatment not available to me due to OTH Discharge. I have testicular cancer and received doctor’s orders to have monthly follow-ups to test for reoccurrence. I got out of the Navy in Jan99, and have been denied treatment by VA due to discharge. The injury was service connected, and I can't receive benefits for it until discharge is upgraded. I'm only worried about medical help. I've enclosed the DR's orders and treatment necessary for my survive please see fit to reinstate necessary benefits. According to enclosed letter from Rear Adm S_, I am support to receive help for cancer, but I have been denied due to discharge.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of E-mail dated September 24, 28, and 30, 1998 re: applicant (2 copies)
Sixteen pages from applicant's medical record
Copy of handbook re: Follow-up of Cancer cover and page 69
Copy of DD Form 214 (2 copies)
Letter from Rear Admiral to applicant's mother dated November 24, 1998 (4 copies)
Copy of medical examiner's report (DD Form 503) dated September 21, 1998
Copy of Action of the Convening Authority November 24, 1998 (2 copies)
Statement from applicant
Newspaper article
DD Form 149
Copy Enlisted Performance Evaluation Report for 93JullO to 95Jan3l
Copy of Letter of Appreciation dated October 26, 1993 (2 copies)
Copy of NATO certificate
Letter of Commendation October 12, 1994 and October 27, 1995
Copy of nursing note
Copy of Good Conduct Award Certificate dated May 11, 1996
Copy of Navy and Marine Corps Achievement Medal Certificate dated December
17, 1996
One page of applicant's dental record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     920714 - 930510  COG

 Period of Service Under Review :
Date of Enlistment: 930511               Date of Discharge: 990127

 Length of Service (years, months, days):

         Active: 05 08 17
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (21 months extension)

 Education Level: 12                        AFQT: 66/68

 Highest Rate: JO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, Letters of Commendation, NAM, RSR, AFSM, OSR, NATO

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980825:  Special Court Martial
          Charge I: violation of the UCMJ, Article 107:
                   Specification 1: False official statement
                  Charge II: violation of the UCMJ, Article 123A:
 Specification 1: Checks with insufficient funds.
Charge III: violation of the UCMJ, Article 134 (6 specs): Specification 1-6: Failure to pay just debt.
 Findings: to Charge I, II and III and specifications thereunder, guilty.
Sentence: CHL for 5 months, forfeiture of $615 per month for 5
 months, reduction to JOSR, Bad Conduct discharge.
CA 981124: Sentence approved and ordered executed, except for that part of the sentence extending to a bad conduct discharge and confinement in excess of 136 days which are suspended for a period of one year from the date of trial.
980815:  Applicant to confinement.

 981123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
981123:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
981124:  Commander, Fleet Air Mediterranean directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
981216:  Applicant from confinement.

990210:  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: (verbatim): Member was awarded an Other Than Honorable discharge in lieu of a bad conduct discharge awarded at special court-martial. Discharge approved 981124.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990127 under other than honorable conditions for misconduct due to commission of a serious offense (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).

The Board found that the applicant went to a Special Court Martial for a false official statement, failing to pay just debts (6 specifications) and checks with insufficient funds. The applicant was awarded CHL for 5 months, forfeiture of $615 per month for 5
months, reduction to JOSR, and a Bad Conduct discharge. The Convening Authority took the applicant’s mitigating circumstances into account when he suspended part of the CHL of 5 months and the Bad Conduct discharge and instead allowed an administrative separation under other than honorable conditions. R elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. (B, Part IV) The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

In response to the applicant’s issue 1, t he Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility. There is no requirement or law that grants recharacterization based solely on the issue of obtaining veteran’s benefits. The Board encourages the applicant to contact his nearest DVA Regional Office and inquire about the VA appeal process for medical treatment. This is not an issue for which the Board will grant relief.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, false official statement 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


RECORD OF VOTE

 BOARD MEMBER                       CHARACTER                 BASIS/REASON






D.KIFFER, C OL , USMC               Relief not warranted              Relief not warranted
Presiding Officer






W. BURKE, CDR, USN                Relief not warranted              Relief not warranted
Member






C.BUCHHEISTER, LCDR, USN         Relief not warranted              Relief not warranted
Member






L.J. NEVEL, LT, USN               Relief not warranted              Relief not warranted
Member






 P.A. HAYES, LCDR, USN             Relief not warranted              Relief not warranted
 Recorder


A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE, states:
 _________________________________________________________

Responsible BUPERS (Pers-83) Phone: DSN 224-8245
Office COM (703)614-8245
FAX 224-8194
_________________________________________________________

Reference Manual of Courts-Martial (MCM)
__________________________________________________________

Policy Members may be separated based on commission of a serious military
         Or civilian offense, when:
        
•         the specific circumstances of the offense warrant separation;
•         the offense would warrant a punitive discharge per MCM, Appendix 12 for the same or closely related offense.

The commission of a serious offense does not require adjudication by non-judicial or judicial proceedings. However, the offense must be substantiated by a preponderance of evidence (e.g., copy of police record, NCIS investigation, etc.).
         ____________________________________________________________

Mandatory        Processing is mandatory for:
Processing
•         violent misconduct which resulted in, or had the potential to result in, death or serious bodily injury, (e.g., homicide, arson, armed robbery, assault with a deadly weapon, etc.)

•         deviant sexual behavior (lewd and lascivious acts; sodomy - forcible heterosexual or child molestation; indecent assault, acts, and/or exposure; or incestuous relationships).

•         If incest, notify Pers-661D and Pers-8 immediately. Pers-8 will direct processing for separation if the case is substantiated for child sexual abuse.
•         If the member is ultimately retained, Pers-8 will forward the case to pers-661D, who will review he case for referral to the Family Advocacy Program (FAP). Whether the member is accepted or not, Pers-8 may direct separation of the member at his/her EAOS, with an RE-4 reenlistment code.
•         If the member is accepted, but later evaluated as a rehabilitation failure, reprocess per MILPERSMAN 1910-162.

•         sexual harassment under the following circumstances:

•         threats or attempts to influence another's career or job in exchange for sexual favors;
•         rewards (including bribes to influence favorably another's career) in exchange for sexual favors; or
•         unwanted physical contact of a sexual nature which, if charged as a violation of the UCMJ, could result in a punitive discharge.
____________________________________________________________

Procedures        Use this table to determine processing procedures.

        
WHEN the... THEN use the .. EXCEPT when... THEN use the ...
offense requires mandatory processing or the commanding officers believes the circumstances surrounding the offense warrants an OTH per MILPERSMAN 1910-300 Administrative Board Procedure (MILPERSMAN 1910-404) the offense occurred preservice or in a prior enlistment and was unknown to the navy at time of enlistment or reenlistment and processing for fraudulent enlistment is not appropriate Notification Procedure (MILPERSMAN 1910-402)
commanding officer believes the circumstances do not warrant an OTH per MILPERSMAN 1910-300 Notification Procedure (MILPERSMAN 1910-402)
         ______________________________________________________

Characterization Further guidance on characterization of service is provided in
of Separation    MILPERSMAN 1910-300. This table provides general information based on type of procedures used.

IF... THEN the least favorable characterization...
the Notification Procedure is used is GEN per MILPERSMAN 1910-308
the Administrative Board Procedure is used is OTH per MILPERSMAN 1910-300

         If the member has less than 180 days of service an Entry Level Separation may be appropriate. See MILPERSMAN 1910-308 for further guidance.
         _______________________________________________________

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