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NAVY | DRB | 2001_Navy | ND01-00496
Original file (ND01-00496.rtf) Auto-classification: Denied


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


ex-AMSAN, USN
Docket No. ND01-00496

Applicant’s Request
The application for discharge review, received 010306, requested that the characterization of service on the discharge be changed to honorable. 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 010710. After a thorough review of the records, 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 3630600.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues (verbatim)

1. Presently partially blind as of 00DEC27.

 2. The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than Honorable does not apply to my case because of the evidence I am submitting.

Under current standards, I would not have received the type of discharge I did:

Received a prior Honorable Discharge, my average conduct and efficiency ratings / behavior and proficiency marks were 3.8 or higher, stating a generally good service member.

Team player, Libya crisis 1986, at Station on board the U. S.S. Forrestal for 108 days.

Worked Out-Of-Rate for 2.5 years as a Yeoman, typing outgoing correspondence, quarterdeck watch, arranging retirement ceremonies and mail sorting for the Officer in Charge, Naval Air Maintenance Training Group Detachment Jacksonville, receiving 4.0 evaluation, promotion to Aviation Structural Mechanic Third Class and Letter of Appreciation from the Officer in Charge for successfully reformatting and streamlining during volunteer weekends, through the E-5 to E-9 evaluations, completing ahead of time, ready for the review board, 1990, resulting in at least 10 promotions to the next higher rank / promoted to Master Training Specialist.
Received Letter of Appreciation for renovating Hazardous Material Control Paint Locker in orderly O. S.H.A. fashion resulting in zero hits on all Zone Inspections onboard U.S. S. Eisenhower as seaopdet member, N.A. S. Jacksonville, 1992.

 Received Letter of Appreciation from Officer in Charge Marine Training Group Detachment, U.S.S. Eisenhower for volunteering off-duty hours to make necessary repairs to Marine Guard Post and other areas in the Marine Berthing Area onboard U.S. S. Eisenhower, 1992.

Team player during Dessert Shield / Dessert Storm, receiving 2 nd good conduct metal, meritorious unit commendation medal southwest Asia service medal, nation defense service medal, and 3 rd sea service deployment ribbon.
Assisted six new under ranking crew members in organizing / arranging the A.I.M.D. Airframes Shop, Advanced Composite Repair Shop, Metal Fabrication and aircraft repairs while being second in charge, night check, onboard U.S.S. Washington, resulting in zero hits on all Zone Inspections, 1994.
Since discharge I worked as a volunteer for two weeks doing Data Entry at the March of Dimes for the Tulsa 2K Run / Walk in November, 1994.
Upon returning from overseas I couldn't adjust to stateside duty due to newlywed Marital, Family and ChildCare Problems. My personal problems led to a co-dependency towards alcohol, which contributed to my inability to finish the last five months of my enlistment, thus earning my second Honorable Discharge.
The purpose for requesting an upgrade from an Other Than Honorable RE-4 Discharge to an Honorable RE-1 Discharge is not to re-enter the armed forces, although I wish I could. It is not to apply for a government job, VA Loan or VA Home, if I even have those privileges. My request for an upgrade is to help with pain and suffering.
Two years ago as I was walking to my car, a larger shadow came over mine, I turned around just to be struck in the head, by an unknown person, with a solid steel pipe with a spike on it. The spike left a one inch hole splitting my left eyebrow and me left to die bleeding from my head. After the paramedics arrived my heart stopped, spirit lifted and my journey threw the light and tunnel began, before my time. I was then directed by a spirit larger than myself back down, watching and listening to the paramedics from an arial view, thinking it was too real to be a dream as I listened to my flatline. Doctors later told me that a person usually lives only six years after a heart attack and some organs age as much as twenty years. I had no heart attack, my heart stopped. Medical records located at St. John's Hospital, Tulsa, Oklahoma, 1997.
One Year later I almost lost my life, Labor Day weekend on my job, working in a steel distribution warehouse assisting my partner moving an I-beam weighing 15, 1 00 lbs.; using L-shaped hooks, my hook slipped out, striking me in the jaw, rib cage and tricep before landing head-first. I was awarded seven weeks Workman's' Compensation with no broken bones. Medical records are located at St. John's Hospital, Tulsa, Oklahoma, 1998.
Starting a new life in Tulsa, working two and three jobs was not working. I recently moved to Orlando, Florida. After being on my new job for two weeks my blood pressure was 240/180 and I suffered a stroke during a four-day coma. I am presently suffering reactions from plasma treatments, only allowing me 20% strength in my legs, I am suffering from a bacteria in by blood stream that is eating away at my white blood cells. I was told by half of my doctors that I must continue taking my many blood pressure medicines as well as my plasma / dialysis treatments or I will die. I am presently in the hospital suffering from a 2 d kidney failure, which will result in life-long dialysis treatments. Medical records are located at Florida Hospital, Orlando, Florida, 2001.
I would like to request the hardest thing I'd never thought I would ever request. I (applicant) respectfully request an upgrade to an Honorable Discharge, any /all benefits, medical, medications, etc. that accompany it, that I may live.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        841107 - 881103  HON
          Inactive: USNR (DEP)     840201 - 841106  COG

 Period of Service Under Review :
Date of Enlistment: 881104               Date of Discharge: 940701

 Length of Service (years, months, days):
         Active: 05 07 28
          Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (18 months extension)

 Education Level: 12                        AFQT: 25
Highest Rate: AM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.71 (7)    Behavior: 3.68 (7)                OTA: 3.82

 Military Decorations: None
Unit/Campaign/Service Awards: GCM (2), MUC, SASM, NDSM, SSDR (3)
Days of Unauthorized Absence: 1

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890518:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645-0730, 15May89.
         Award: Forfeiture of $216.72 per month for 1 month, restriction for 14 days and extra duty for 7 days. No indication of appeal in the record.
890914:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645-0750, 2Agu89.
         Award: Forfeiture of $217 per month for 1 month, restriction for 14 days, reduction to AMSAA. Reduction suspended for 6 months. No indication of appeal in the record.
891121:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645-0720, 15Nov89.
         Award: Forfeiture of $217.20 per month for 1 month, restriction for 14 days. No indication of appeal in the record.
891127:  Applicant to Level III treatment.
900105:  Applicant completed Level III treatment.

 940226:  Civil conviction: Duval County Courthouse for violation of battery/domestic violence.
 Sentence: Pled no contest, withheld adjudication of guilt. Fined $100, probation for 6 months, counseling through U.S. Navy.
940512:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 112.
         Award: Forfeiture of $552 per month for 1 month, restriction and extra duty for 45 days, reduction to ABEAN. No indication of appeal in the record.
940525:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to the commission of a serious offenseand alcohol abuse rehabilitation failure.
940526:  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.
940602:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction, misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure. Commanding officer’s comments (verbatim): AMSAN (applicant) attended Level III treatment from 27 November 1989 to 5 January 1990 and is considered an alcohol rehabilitation failure due to a recent alcohol related incident resulting in a civil conviction. His civil conviction and Captain's mast for being drunk on duty clearly illustrate he has no potential for further military service. Based on the seriousness of the offenses he has committed, I strongly recommend that he be separated from the naval service with an other than honorable discharge for misconduct due to the civil conviction, misconduct due to commission of serious offenses and alcohol abuse rehabilitation failure.
940615:  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 940701 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, 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 issues 1 and 2, the NDRB, when reviewing a discharge, does consider the extent to which a medical problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. While the NDRB sympathizes with the applicant’s stated condition, it does not consider the circumstances surrounding the applicant’s stated condition, which occurred after the applicant’s discharge from the naval service, to be of sufficient nature to exculpate the applicant’s misconduct. In addition, the NDRB recognizes that the applicant had a fairly good record while in the Navy, however, the applicant’s record fails to mitigate his civil conviction for battery, alcohol abuse rehabilitation failure and his violations of the UCMJ which include Article 86 (unauthorized absence) and Article 112 (drunk on duty). Relief is not warranted.

 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 (E). 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 alcohol (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 any 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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112, drunk on duty, 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 " 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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