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NAVY | DRB | 2001_Navy | ND01-00503
Original file (ND01-00503.rtf) Auto-classification: Denied


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

ex-OTASR, USN
Docket No. ND01-00503

Applicant’s Request
The application for discharge review, received 010309, 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 designate a 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, 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 four to one 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. I have made many changes in my life in the past several years to change the negative effects of my past. (See pages 2 thru 3 and documents #1 thru #4).

2. The negative influences and lies I was subject to by my ex-wife J_ and her mother P_ G_, severely clouded my judgment while I had to make critical decisions. This lead to my dismissal from the military. If it were not for their destructive influences, I would not have made such terrible mistakes. Over a duration of one year, J_'s lies and manipulation became too much for me to handle. It seemed that one lie ran right into another and before I had time to react to her lies, she had already started another one.
*November 1992 - J_ convinced me she was pregnant with my child. Because of the pregnancy, I decided that I should marry her which at the time I though would have been best for all that were involved. (See pages 3 thru 5 and Document #5).
*March 1993 - I believe J_ used a minor car accident to cover-up the lie of her not being pregnant, so that I would not learn that she was never pregnant. (See pages 5 and 6 and document #6, #7, and #8).
*November 1992 to December 1994 - J_ lied about being pregnant many times prior to and during our marriage. (See page 6 and Documents #9 thru #15).
*April 1993 - J_ and I had to resort to filing for a Protection from Abuse Order from P_ due to her relentless harassment against us. (See Page 6 and Document #16).
 *June 1993 - J_and I rented an apartment in Norfolk, VA. Within two months we were in financial distress. That lead J_ into a series of lies about a large trust fund in her name, her family history and promised financial stability from her family. (See pages 6 thru 10 and Documents # 17 and # 18).
*August 1993 - I took leave to deal with a supposed problem that J_ had with her mother interfering with J_'s supposed trust fund. (See page 8 and Military Record).
*September 1993 - I received a telephone call at work from J_. She was severely distressed over the supposed news that her grandmother was in the hospital ill and not expected to live very long. I took emergency leave to deal with J_'s problem. The entire story turned out to be a lie. (See pages 8 thru 10, Documents #17 and #18 and Military Record).
*October 1993 - I awoke to the strong smell of smoke while sleeping in our bed. The bed had caught on fire and was ruled to be possibly caused by a cigarette. (See pages 10 and 11 and Document # 19).
*November 1993 - I moved J_ to Pennsylvania where her mother had an empty house that she said that we could use. While I was in Pennsylvania with J_ for a short period of time, P_ and J_ convinced me that I should get out of the military and then go to Missouri to work for P_ on her farm. I took P_'s advice and returned to my command and said I wished to kill myself, just like she had told me to say. I was then admitted to a Navy hospital in Norfolk. (See pages 11 and 12 and Military Record).
*November 1993 - While I was in the hospital, I received a telephone call from J_'s friend L_. She said that J_ had been raped by J_'s step-grandfather. Again, I was forced to take emergency leave to deal with J_'s problems. (See page 12 and Military Record).
*November 1993 - While I was on emergency leave, Jennifer had convinced me that she was indeed raped and and also being stocked by her family members whom were supporting her step-grandfather. She had also begun a series of violent attacks and accusations against me. During that time period, Jennifer convinced me that I abandoned her which was the cause of her rape and if I did it again, she and the baby that she was carrying would not survive. I felt that I had no choice but to stay by her side since I was not able to relocate her to Virginia. I decided to stay past my leave in order to keep her safe. That decision cost me my military career. (See pages 12 thru 16, Record #1 and Military Record).
*January 1994 - I returned from being U.A. (See page 16 and Military Record).
*March 1994 - I was discharged from the Navy. (See page 16 and Military Record).

3. Even though I was discharged from the Navy, my problems with J_ and her family were far from over. It took me several months before I realized that J_ and her mother were from bad seed and it took me few more months past that to actually get away from them for what I planned would be for good.
*March 1994 thru June 1994 - Jennifer and her mother had several problems between them.
Jennifer and I moved several times while we were in Missouri to try to get away from her mother. (See page 16).
*July 1994 - J_ used her false pregnancies to string me along so that I would not leave Missouri like I had told her I wanted to do. I had had enough of Jennifer's lying about being pregnant and other things. I took J_ to an emergency room twice in July and once in August because she said that she was pregnant and miscarrying. The doctors told her she was not pregnant each time, but she insisted that they were wrong. (See pages 16 and 17 and Documents #20 thru #23).
*August 1994 - J_ and I left Missouri and moved to Virginia. I thought that I would give J_ one more try without her mother being involved, but J_ continued to lie and cause trouble for us. At that point I decided to leave J_ and I mad arrangements to return to Pennsylvania. (See pages 17 and 18).
*December 1994 - I left J_ for good. (See pages 17 and 18).
*January 1995 thru October 1995 - I just worked and cleared my mind while I prepared to divorce J_. (See page 18).
*October 1995 thru March 1996 - I filed for and received a divorce from J_. (See page 18 and Record #2).
*March 1996 - I received information that J_ had a baby in Missouri. Upon contacting the hospital where she had the baby, I also learned that J_ had used my name to bill for the delivery. She used her address with my name apparently so that I would not find out about her scam. I also learned upon more investigation that she had done the same for various accounts in the area. Withing several seeks, I also learned that she had done the same thing and also used CHAMPUS in another state where she had been living. I was devastated to learn that there was little or nothing that I could do about any of the things that she had done. (See pages 18 thru 20 and Documents #24 thru #56).
*April 1996 - I changed my name and filed for and received a new social security number due to the continued fraudulent use of my personal information by my ex-wife. (See pages 20 and 21, Document #57 and Record #3).
*July 1996 - I received information that J_ had filed to sue me for paternity of her child. I fought her and won the case. (See pages 21 and 22, Document #58 and Record #4).
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's Letter of Explanation dtd 27 Feb 2001 (23 pages)
Document 1 - Marriage Certificate to wife J_ L_ O_ dtd 18 March 1999
 Document 2 -State Certification for Emergency Medical Technician (Eff 03/14/2000 - Expires 04/01/2003
Document 3 - State Certification for Emergency Vehicle Driver Training (EVOC) dtd 4 Jun 2000
 Document 4: American Red Cross Instructors Certificate dated 27Mar99
Document 5: Marriage Certificate to ex-wife J_ E_ G_ dated 14Feb93
Document 6: Police Accident Report dated 18Mar93
Document 7: News paper clipping
 Document 8: Medical Report dated OlMar93 (Please see Military Record for full report).
Document 9: Medical Report dated 01Mar93 (Please see Military Record for full report).
Document 10: Medical Report dated 17Nov93
 Document 11: CCH Laboratory Results dated 17Nov93
Document 12: Medical Statement dated 07Jul94
Document 13: Medical Statement dated 25Jul94
Document 14: Medical Statement dated 31Jul94
Document 15: Medical Statement dated 27Jul94
Document 16: Protection From Abuse Order
Document 17: News paper clipping dated 04Nov73
Document 18: News paper clipping dated 17Mar73
Document 19: Fire Incident Report dated 31Oct93

RECORD#1

RI Document 1: Medical statement dated 17Nov93
RI Document 2: Emergency Registration Form dated 17Nov93
RI Document 3: Medical Report dated 17Nov93
RI Document 4: Medical Report dated 17Nov93
RI Document 5: CCH Laboratory Results dated 17Nov93
RI Document 6: Medical Consent Form dated 17Nov93
RI Document 7: Medical Consent Form dated 17Nov93
RI Document 8: Release Form dated 17Nov93
RI Document 9: Criminal Complaint dated 18Nov93
RI Document 10: Warrant dated 18Nov93
RI Document 11: Arrest Warrant Affidavit dated 18Nov93
RI Document 12: Search Warrant dated 18Nov93
RI Document 13: Statement of Criminal Charges and Bail dated 01Dec93
RI Document 14: Statement of Criminal Charges
RI Document 15: Warrant of Arrest dated 18Nov93
RI Document 16: List of Charges
RI Document 17 (pages 1-42): Transcript from preliminary hearing dated 01Dec93
RI Document 18: Order on charges dated 18Dec95
RI Document 19: Order on charges dated 18Dec95
Document 20: Medical Statement dated 07Jul94
Document 21: Medical Statement dated 25Jul94
Document 22: Medical Statement dated 27Jul94
Document 23: Medical Statement dated 31Jul94

RECORD #2

R2 Document 1: Divorce Complaint dated 050ct95
R2 Document 2: "Legal Motion of Objections," filed by ex-wife dated 160ct95
R2 Document 3: Application for Marriage License dated 12Feb93
R2 Document 4: Copy of Pawn Ticket dated 29Jun94
R2 Document 5: "Legal Objections," filed by ex-wife dated 170ct95
R2 Document 6: Affidavit of Service dated 160ct95
R2 Document 7: Letter and envelope dated 08Jan96
R2 Document 8: Affidavit of Consent dated 15Jan95
R2 Document 9: Affidavit of Consent dated 01Mar96
R2 Document 10: Decree in Divorce dated 06Mar96
R2 Document 11: Notice of Election to Retake Maiden Name dated 14Mar96
R2 Document 12: Affidavit of Separation dated 28Mar96
Document 24: Medical Statement dated 31Jul94
Document 25: Medical Statement dated 13Aug95
Document 26: CHAMPUS Claims Form dated 13Aug95
Document 27: Consent Form dated 13Aug95
Document 28: Medical Statement dated 20Aug95
Document 29: CHAMPUS Claims Form dated 20Aug95
Document 30: Consent Form dated 20Aug95
Document 3 1: Medical Statement dated 31Aug95
Document 32: CHAMPUS Claims Form dated 27Jul94
Documents 33 thru 56: Correspondence between me and several organizations and people

RECORD#3

 R3 Document 1: Copy off of J_'s credit report showing the use of three social security numbers
 R3 Document 2: Confirmation of my address change dated 28Mar96
R3 Document 3: Written request for social security number change
R3 Document 4: Letter to Post Master in Missouri dated 8May96
R3 Document 5: Complaint filed with U.S. Postal Service dated 05Aug96
R3 Document 6: Address Information Request dated 17Augl996
R3 Document 7: Copy of returned envelope dated 26Aug96
R3 Document 8: Confirmation of social security number change dated 27Aug96
Document 57: Decree in name change dated 19Apr96
Document 58: Letter from Missouri Department of Social Services dated 23Jul96

RECORD#4

R4 Document 1: Order to Appear for Conference dated 09Jan97
R4 Document 2: File from Department of Social Services
R4 Document 3: DNA results from LABCORP dated 07Apr97
R4 Document 4: Court Order To Dismiss dated 10Apr97
R4 Document 5: Notice of Right to Trial on Issue of Paternity dated 09Jan97
R4 Document 6: Assessment of Cost for Genetic Testing dated 09Jan97
R4 Document 7: Demand for Jury Trial
Document 59: Reference Letter from Spouse dtd Feb 12, 2001
Document 60: Reference Letter from G_ L. R_ dtd May 23, 2000
Document 61: Reference Letter from K_ G_ dtd Jan13, 2001
 Document 62: Reference Letter from S_ W_, Bellwood Ambulance Assoc dtd Dec 15, 2000
Document 63: Reference Letter from C_ J. W_ Asst Cub Scout Pack Leader dtd Sep 9, 1999
 Document 64: Reference (Not Received)
Document 65: Reference (Not Received)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     910904 - 920722  COG

 Period of Service Under Review :
Date of Enlistment: 920723               Date of Discharge: 940311

 Length of Service (years, months, days):

         Active: 01 07 19 (Doesn't exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 67

 Highest Rate: OTASA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.8 (1)     Behavior: 2.8 (1)                 OTA: 3.2

 Military Decorations: None

 Unit/Campaign/Service Awards: NSDM

 Days of Unauthorized Absence: 44

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 :

930312:  NJP for violation of UCMJ, Article 86: On or about 0050, 4 March 1993, without authority absent himself from his appointed place of duty until on or about 0700 (approx. 6 hrs).
         Award: Restriction and extra duty for 14 days. No indication of appeal in the record.
930315:  Retention Warning: Advised of deficiency (violation of UCMJ Article 86, absence form place of duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
930323:  NJP for violation of UCMJ, Article 107 (3 Specs): did on or about 12 March 93, make false official statements.
         Award Oral Reprimand. No indication of appeal in the record.

930323:  Retention Warning: Advised of deficiency (violation of UCMJ Article 107, false official statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

931203:  Unauthorized absence from NAVOCEANPROFAC Dam Neck, VA - over leave.

940103:  Declared a deserter, have been an unauthorized absentee since 2359 03DEC93 from NAVOCEANPROFAC (NOPF) Dam Neck, VA.

940116:  Returned from UA status 1830 hours this date at Navy absentee Collection Unit, NAS Jacksonville, VA, for further transfer to NOPF, Dam Neck, VA.

940124:  NavMedCen, Portsmouth, VA (Psychiatric Eval): Attending psychiatrist advises consideration of admin separation for unsuitability. Mbr is not considered mentally ill and returns to full duty. This individual does manifest a long standing disorder of character and behavior which is or such severity as to interfere with serving adequately in the Navy. Processing for admin separation in accordance with MILPERSMAN 3620225, would require, in addition to his diagnosis, documented interference with the performance of duty and counseling. In the examiner's opinion, the pt does not possess a severe mental disease or defect for purposes of R.C.M. 706 examinations and is considered competent.

940210:  NJP for violation of UCMJ, Article 86: did on or about 3 December 1993, without authority absent himself from his unit, and did remain absent until he was apprehended on or about 16 Jan 94 (44 days).
         Award: : Reduced to pay grade E-1, extra duty for 30 days and Oral Reprimand. No indication of appeal in the record.

940214:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your service record..
940214:  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.
940222:  Commanding officer recommended discharge with a "General, under honorable conditions, by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): "I strongly recommend that OTASR (Applicant) be separated from the Naval Service at the earliest possible date, due to commission of a serious offense. Seaman Recruit (Applicant) was TAD to the Portsmouth Naval Hospital Psychiatric Ward for evaluation. Due to family problems he was placed on emergency leave. He failed to return from leave and was declared a deserter after being absent without authorization for 30 days. His absence was terminated when he was apprehended by civil authorities and turned over to military control. I held CO's Mast and found him guilty of Article 86 (unauthorized absence). Upon OTASR (Applicant)'s return form unauthorized absence he was referred back to the Psychiatric Ward at Portsmouth Naval Hospital and diagnosed as manifesting a long standing disorder of character and behavior which is of such severity as to interfere with his adequately serving in the Navy. The Psychiatrist advised consideration for Administrative Separation for unsuitability and released (applicant) back to full duty. I know his discharge would be in the very best interest of the Navy, and that, due to the seriousness of his misconduct, mitigated by the presence of family problems and statement of the psychiatrist, his discharge should be characterized as General."

940302:  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 040311 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 applicant’s issue’s 2 and 3, the Board sympathizes with the applicant over the numerous difficulties he experienced in his unfortunate marriage. However, the Board found that the applicant was responsible for his decisions and actions while in the naval service even though his then wife may have negatively influenced him. The Board will not grant relief based on these issues.

In response to applicant’s issue 1, 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. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. 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 provided Emergency Medical Technician certification, Emergency Vehicle Driver certification, American Red Cross Instructor certification, a marriage certificate and five character references as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, more documentation of community service and certification of non-involvement with civil authorities 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 highly encouraged to continue with his pursuits and to apply for a personal appearance hearing. The applicant is reminded to bring all pertinent documentation to the hearing and be ready to explain his position. Representation at the hearing is strongly recommended. The applicant is also reminded that the application for a personal appearance hearing must be 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 86, for unauthorized absence for a period in excess of 30 days, 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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