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NAVY | DRB | 2000_Navy | ND00-00723
Original file (ND00-00723.rtf) Auto-classification: Denied


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

ex-MS3, USN
Docket No. ND00-00723

Applicant’s Request
The application for discharge review, received 000516, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 001214. 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).

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, should contain the following statement: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 91SEP10 UNTIL 98AUG27". The original DD Form 214 should be corrected or reissued as appropriate.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. I, T_ J. S_ (Applicant), when discharge was not charged with a crime or any curt martial preceding or any NJPs. I feel that I was wrongly accused and received a discharge that I didn't deserve. I have confidence that my military service record supports the fact that I feel I should receive an honorable discharge. Also I feel that my medical records supports my statements. Thank you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Applicant's letter to the Board
Applicant's mother's letter dtd May 1, 2000
Police Certificate of Record Search dtd May 8, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               950909 - 980827  HON
                                             910910 - 950908  HON
         Inactive: USNR (DEP)     910508 - 910909  COG

 Period of Service Under Review :
Date of Enlistment: 980828               Date of Discharge: 990810

 Length of Service (years, months, days):

         Active: 00 11 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 3

 Education Level: 12                        AFQT: 54

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM(2), SWAM(2), JMSM, NDSM, AFEM(2)

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 :

930511:  Medical Department, USS MILWAUKEE: Applicant authorized not to shave because of medically diagnosed condition of Pseudofolliculitis Barbae (PFB), a skin condition caused by, and further aggravated by shaving.
980828:  Reenlisted for a term of three years.

 990304:  Pascagoula Primary Care Clinic (Urology): Discussed this pt with DR P_ 16 Feb 99 and agreed to see pt 22 Feb 99 but pt misunderstood appointment time after being informed twice. Pt still complains of hematurea. Pt has recent ultrasound.
990626:  Applicant e-mailed SKC P_ in regards to hurting himself to get off the ship.
990626:  Med Dept, USS THOMAS S. GATES: 26 year old black male presenting at sick call escorted by EMC C_ and SKC P _ due to the fact that the pt had e-mailed SCK in regards of hurting self to get off the ship. Pt state that he does not want to commit suicide because it would make him look crazy. Pt just wants to go home to finish divorce because he has too much time out here to think. Pt had a knife on his person and one in his rack. Pt states that he did, before the deployment, think about shooting his foot or his leg. Pt never communicated this with anyone. Pt states that his blood in the urine started long before he came to this command. Pt states that he does not communicate with people because he doesn't trust them. Pt states that he has always felt like hurting himself. Pt has not made any attempts only thoughts. Previous history - pt has been under stress by recent separation from wife over an alleged affair. Pt had punched a wall in 24 Aug 98 to avoid hitting his wife, but nothing ever was done about that. Pt states he was diagnosed as an alcoholic but not documentation in health record. No alcohol abuse at this present time.
         Assessment: Adjustment Disorder
         Plan: 1 - due to ship location, we will medevac pt with escort upon arrival in Netherland. Pt agreed to this (contract not to hurt himself signed). After this was told to pt of our plan he reacted calmly and took the news well. Pt was sent to back to berthing, rack was searched by EMC C_ for any weapons. Pt was told to come find me at any time if situation became too stressful. (HMC(FMF) R_, IDC/USN.

990706:  Branch Med Clinic, Pascagoula: 26 year old black male sent back from USS GATES due to suicidal ideation onboard. Pt admits he doesn't want to hurt himself but will if that's what it takes to get off the ship. Going through difficult & prolonged divorce with wife of 6 years. Pt require mental health eval. Refer to Keesler AFB Mental Health today.

990706:  Keesler Medical Clinic (Psychology): Pt is 26 year old ……referred due to recent suicidal ideation with gesture…… Pt states he does not want to throw away 8 years of military if he can avoid, his fears if current situation continues he will never be able to complete divorce. Pt plans on speaking with his attorney & exploring options before asking for administrative separation. Pt is not currently at risk to self or others.
         Assessment: "sad, frustrated". Affect appropriate to situation. TP, TC, Speech were WNL.
         Plan: 1) Pt to RTC in 2 wk for follow/up. 2) pt will attempt to accomplish divorce while on shore duty. 3) Pt to RTC if situation or symptoms worsen.

990713:  Applicant's mother wrote to the command concerning the applicant's medical situation.

990720:  By phone, Applicant was instructed to come to clinic for evaluation. Pt was diagnosed with hemorrhoid & treatment discussed.

990729:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense (violation of UCMJ, Article 92 - failure to obey, Article 107 - false official statement, and Article 134 - communicating a threat.
990729:  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.
990730:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Summary of military offenses: Violations of UCMJ Article 92 (Failure to obey); Article 107 (False Official Statement); Article 134 (Communicating a Threat). Commanding officer’s comments (verbatim): "MS3 (Applicant) is assigned to Naval Station Pascagoula, MS in a TEMDU status from the USS THOMAS S. GATES (CG 51), homeported at Pascagoula, MS. MS3 (Applicant) falsely conveyed to this command that he had a medical appointment when in fact he did not. MS3(Applicant) returned to the command and was then confronted about his whereabouts, wherein he then communicated a threat to kill a Senior Chief and "shoot" other military personnel. Due to these threats and based upon my understanding that he was under a lot of stress due to significant personal problems, I found probable cause to search his private vehicle which was located on this station. Results of the search uncovered a .380 firearm, 28 380 live hollow-point rounds, and a canister of 10 percent pepper spray. The firearm was loaded with a magazine containing five rounds, none chambered. MS3 (Applicant) has committed serious violations of the rules and regulations of his command and the U.S. Navy, and he appears unwilling or unable to conduct himself in a manner conducive to good order and discipline. In light of the foregoing, I strongly recommend that MS3 (Applicant) be separated from the naval service by reason of "Commission of Serious Offenses", and that his characterization of service be "Other Than Honorable".

990730:  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 990810 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).

In response to the applicant’s issue 1, a member does not have to be “charged with a crime” or have a court martial or NJP to be administratively separated from the Navy. The applicant committed a serious offense when he communicated threats to other Navy members, made a false official statement and failed to obey an order. All the applicant’s offenses are court martiable offenses which allows a Commanding Officer to recommend administrative separation from the service based on misconduct due to commission of a serious offense. NMPC concurred with the Commanding Officer and the applicant was discharged from the Navy. The applicant was given his proper rights and all due process and therefore the Board finds that the applicant was discharged properly from the Navy. Relief is denied based on issue 1.

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. However, 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 ample post service documentation of good character and conduct. Therefore no relief will be granted. The applicant 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.

 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 92, fail to obey, Article 107, false official statement and Article 134, communicating a threat for a period in excess of 30 days.

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      


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