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NAVY | DRB | 2001_Navy | ND01-00466
Original file (ND01-00466.rtf) Auto-classification: Denied


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

ex-GMMSA, USN
Docket No. ND01-00466

Applicant’s Request
The application for discharge review, received 010228, 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (Equity Issue) As supported by his treating physician’s professional opinion, a specialist in the field, this former member proffers that his Huntington’s disease sufficiently mitigated his misconduct of record to warrant re characterization of his service to General (Under Honorable Conditions).
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Associate Professor, Department of Neurology, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880426 - 880519  COG

 Period of Service Under Review :
Date of Enlistment: 880520               Date of Discharge: 921010

 Length of Service (years, months, days):

         Active: 04 04 21
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4 (11 months extension)

 Education Level: 10                        AFQT: 69

 Highest Rate: GMMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (4)    Behavior: 2.15 (4)                OTA : 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: CGSOSM, NDSM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

880526:  Retention Warning: Advised of deficiency (4 th class swimmer qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
910219:  Applicant's 11 month extension made operative.

 920903:  NJP for violation of UCMJ, Article 92: Failure to obey other lawful written order on 19Aug92.
         Award: Forfeiture of $350 per month for 2 months, restriction and extra duty for 45 days, reduction to GMMSA. No indication of appeal in the record.
920904:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
920904:          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.
920910:  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: GMMSA (applicant's) total disregard for military rules and regulations cannot be tolerated. His actions put himself and the crew in grave danger during ammunition handling. GMMSA (applicant) is not considered trustworthy to continue as a gunner's mate. GMMSA (applicant) has no potential for further useful naval service and should be discharged as soon as possible under other than honorable conditions.

920917:  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 921010 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 issue states: “(Equity Issue) As supported by his treating physician’s professional opinion, a specialist in the field, this former member proffers that his Huntington’s disease sufficiently mitigated his misconduct of record to warrant re characterization of his service to General (Under Honorable Conditions).” The Board carefully reviewed the applicant’s service and medical records and noted, at the time of discharge there was no medical evidence to show that the applicant suffered in any degree, from Huntington’s disease. The applicant was seen by a medical professional on 9 Jan 92 and discussed his family history of Huntington’s disease but no diagnosis of Huntington’s disease was made. The Board noted the applicant was discharged in 1992 and diagnosed in 1998 with Huntington’s disease. The NDRB did not find the evidence presented by the applicant sufficient enough to mitigate the documented misconduct. Relief based on this issue is not warranted.

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. 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 did not provide any documentation of his post-service . The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs 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 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 " afls10.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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