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NAVY | DRB | 2000_Navy | ND00-01019
Original file (ND00-01019.rtf) Auto-classification: Denied


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

ex-EMFN, USN
Docket No. ND00-01019

Applicant’s Request
The application for discharge review, received 000831, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a traveling panel closest to Wausa, WI. The applicant listed PERSONAL REPRESENTATION 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) does not travel, all hearings are held in the Washington DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010215. 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: OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Veteran was harassed by command when asked to see a JAG Lawyer Rep. Veteran received no help from military legal system veteran states help was incompetent and adversarial. In addition during this time period veteran had a broken back as a result of an automobile accident. Command put veteran on light duty and was then taken off light duty and returned to regular duty and extra duty, the whole time with a broken back from Sept 1 1991 to Oct 21 1991. This condition because of the amount of pain made the veteran not fully aware of his actions. At this point the veteran has a degenerative back condition which limits types of employment the veteran can do.

Question 1: Why was veteran not offered proper medical care and forces to work with a broken back for 7 weeks.

Question 2: Why was veteran not offered decent legal representation.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Applicant (2pgs)
Letter from A____ L____, M.D.
Copy of Special Request Authorization Chit
Copy of Medical Report (4pgs)
Copy of Accident Diagram
Copy of Dental Documents (2pgs)
Copies of Medical Documents (19pgs)
Copy of Medical Report (4pgs)
Copies of Special Request Authorization Chits
Letter from Dr S_____, D.C.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     890130 - 890727  COG

 Period of Service Under Review :
Date of Enlistment: 890728               Date of Discharge: 911025

 Length of Service (years, months, days):

         Active: 02 02 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: EM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: NOB             OTA : NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

900905:  NJP for violation of UCMJ, Article 92: Failure to obey lawful order, violation of UCMJ Article 134: Drunkenness-incapacitation for performance of duties through prior wrongful indulgence in intoxication liquor.
         Award: Forfeiture of $75.00 per month for 2 months, restriction to the confines of Naval Base Groton for 15 days, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.

901030:  Retention Warning: Advised of deficiency (You have been formally identified as alcohol dependent, resulting in Level III inpatient treatment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901227:  Retention Warning: Advised of deficiency (CO's NJP of 900905 violation of UCMJ Article 134 and 92 Alcohol Abuse), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910528:  Civil conviction for driving while intoxicated in Groton, CT.
         Sent: SUBASE NLON driving privileges revoked for 1 year, CT driving privileges suspended for 6 months, next court appearance scheduled for 911016.
        
910912:  NJP for violation of UCMJ, Article 92: Willfully disobeying a Superior Commissioned Officer.
         Award: Restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

910912:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by your continued alcohol abuse subsequent to in-patient treatment within the last twelve months; misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment; and by reason of misconduct due to commission of a serious offense as evidenced by punishments under the UCMJ in your current enlistment..
910913:          Applicant advised of his rights and having elected 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 and to submit a statement on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.

910927:  Medical officer's evaluation indicates applicant is considered Level III Treatment failure with no potential for further useful service, remains alcohol dependent.

911007:  Commanding officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to pattern of misconduct and misconduct due to the commission of a serious offense.

911015:  BUPERS 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 911025 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).

 The applicant’s first issue states: “Veteran was harassed by command when asked to see a JAG Lawyer Rep. Veteran received no help from military legal system veteran states help was incompetent and adversarial. In addition during this time period period veteran had a broken back as a result of an automobile accident. Command put veteran on light duty and was then taken off light duty and returned to regular duty and extra duty, the whole time with a broken back from Sept 1 1991 to Oct 21 1991. This condition because of the amount of pain made the veteran not fully aware of his actions. At this point the veteran has a degenerative back condition which limits types of employment the veteran can do.” There is nothing in the record to support the applicant’s assertion that he was harassed by his command or that the counsel was incompetent. The NDRB found the applicant’s medical condition did not mitigate his misconduct. Clearly, the applicant was responsible for his actions and held accountable. The applicant is encouraged to contact the VA in order to determine post service medical treatment. Relief is not warranted.

The applicant’s second issue states: “Question 1: Why was veteran not offered proper medical care and forces to work with a broken back for 7 weeks.” The Board found this issue irrelevant. The record shows the applicant was separated for his misconduct. The NDRB has no jurisdiction to change a discharge to a medical condition. The applicant should contact the VA for treatment possibilities. Relief is not warranted.

The applicant’s third issue states: “Question 2: Why was veteran not offered decent legal representation?” The record shows the applicant consulted with legal counsel. There is nothing in the record nor did the applicant provide any documentation to support the allegation that counsel was inadequate. Relief is denied.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 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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