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NAVY | DRB | 2001_Navy | ND01-00593
Original file (ND01-00593.rtf) Auto-classification: Denied


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

ex-FA, USNR
Docket No. ND01-00593

Applicant’s Request
The application for discharge review, received 010402, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government. 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 011031. 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. The difficulties I had in the U.S. Navy were directly related to diminished capacity for impulse control, coherence and judgmental problems as well as cognitive impairments resulting from a severe closed head injury I received prior to enlistment. This is supported by Dr. M_ W. S_ September 19, 2000 diagnosis at DOCUMENT 1.
DISCUSSION: Dr. M_ W_ S_ diagnosis reflects that my injury "...revealed slow processing speed with both auditory and visual processing, and mild hyperactivity" and "...showed major coherence deviations over both hemispheres [of the brain], more so on the right." Common findings are "...coherence problems,... confusional episodes with resultant frustation, "...aggressive, even violent behavior." I respectfully submit that these factors be viewed as mitigating factors that led to my disciplinary problems in the U.S. Navy. These factors are totally consistent with those of a person who has had a severe closed head injury. I suffered a traumatic closed head injury in July 1991. The accident was a fall from a bike where my head hit a concrete curb. This occurred about 4 years before entering the U.S. Navy. DOCUMENT 2 is Dr. C_ M_'s July 12, 1992 letter that describes my closed head injury as "basal skull fracture extending into the temporomandibular joint." This traumatic event caused a major change in my behavior and is presented here to give an understanding of what I have come to learn is an underlying cause of my disciplinary problems. DOCUMENT 3 addresses "Psychological Consequences Following Brain Injury." These are the psychological problems I have experienced since my head injury.

2. My disenrollment from the Engineering Core School at the Great Lakes, IL Service School because of "difficulties in comprehension/retention" supports my contention that diminished capacity was a factor influencing my performance and behavior then and should allow the U. S. Navy now to rule in favor of mitigating factors in my request for review of discharge.
DISCUSSION: The reason was: "Trainee has been disenrolled from the Common Core School for lack of comprehension/retention of class matter." (See DOCUMENT 4). Despite this finding that I was unable to comprehend and retain the subject matter,
I was not referred for examination but was assigned to the responsibility of engines, compressors, boilers, a distilling plant and the like. This impossible task led to frustration which led to anger which fulfilled the medical prophecies from the traumatic injury. Doctors have now told me that my reacting adversely was not strictly intentional but very predictable.

This supports my case that the severe closed head injury I suffered in 1991 resulted in a diminished capacity and adversely affected my behavior, logic and reasoning powers. Please understand that I take responsibility for my erratic behavior. I am asking the Discharge Review Board to consider the closed head injury was such a traumatic event that it was indeed a causal mitigating factor. The succeeding evidence below further develops this point.

3: My behavior and judgement changed radically for the worse immediately after my head injury and led to disciplinary problems I did not have previously.

DISCUSSION:

a. Dr. J_ N_'s Confidential Report of Neuropsychological Evaluation (DOCUMENT
5) is a comprehensive analysis of my extreme personality change due to the closed head injury. The change for the worse in my behavior and judgement was overwhelming. Major mitigating factors presented in the report follow:

-Neuropsychological:     Brain-related function testing showed "...inability to appreciate the consequences of one's actions, to 'see the big picture', and to exercise good judgment."
-Emotional:      "Results... all indicated very significant current adjustment problems both in terms of emotions and behavior."

b. The reference book, HEAD INJURY: A GUIDE FOR FAMILIES (DOCUMENT 6) describes the consequences of head injuries. Essential points follow:
- "Head injury affects who we are; the way we think, act, and feel. It can change everything about ourselves in a matter of seconds. And it can create havoc in the people we love, our family and friends, who are suddenly faced with a disabled stranger with:
*Cognitive dysfunction ... including memory loss, perception and comprehension difficulties, and deficits in attention, organization, problem solving skills, and reasoning.
*Behavioral problems ... including over-aggressiveness, depression and mood swings, violence, and lack of impulse control." (Page 3).

- "From memory loss to dizziness, there may be some sort of neurological impairment sometimes temporary, but other times a permanent fact of life..." (Page 24).

- "Moderate Head Injury: ...Symptoms vary...but moderate head-injured survivors may suffer from:

•         Perceptual difficulties
•         Poor judgement and problem-solving * Behavioral problems.
•         Memory deficits" (Pages 29 & 30)
c. My parents told me that my whole way of living changed for the worse following the injury. Their letter (DOCUMENT 7) is attached for your consideration.

4: The poor self-control I had in the U. S. Navy created an inevitable situation where disciplinary action would have to be taken. I plead diminished capacity, not as an excuse but as a mitigating factor, in judging my actions.

DISCUSSION: All work-related aspects of my job performance were acceptable and reflected a willingness to work and learn the job. I had a "can do" attitude when it came to getting the job done. However, my military bearing and other self-control attributes were negative. I refer to DOCUMENT 8 which is my final report prior to separation. That report still describes a strong work ethic. Indeed, that final report supports the case I am making that an inevitable"...failure to use proper and sound judgment..." caused the disciplinary problems. I did not willingly want to cause these problems.

5: Alcohol aggravated my condition.

DISCUSSION: DOCUMENT 10 underscores the effect alcohol has on closed head injured persons: "...people who have been head-injured have a lowered tolerance for alcohol. Depression, physical limitations, and the lack of access to quality long ten-n care makes many head-injury survivors turn to alcohol as a way to cope with their problems. Of course, alcohol ultimately, makes their problems even worse." My exposure to and easy access to frequent drinking of alcoholic beverages in the Navy, albeit voluntary, further degraded my self-control.

6: I waived my right to an Administrative Board for my discharge but was not given access to attorney assistance in making that decision.

DISCUSSION: Since January 1, 1974, there is a procedural requirement that a decision to waive an Administrative Board must be made with the assistance of an attorney. I had no attorney advising me when I made the decision to waive my right to an Administrative Board.

7: The civilian conviction for reckless driving is erroneous in that I was not driving. I had neither counsel nor assistance from the Navy in this matter, and I did not know that I had waived a right to counsel.

DISCUSSION: DOCUMENT 11 is the court record. The entries are not correct. I deliberately did not drive after having parking my car and started drinking. I knew that I should not drive. 1 was nowhere near the car when I was arrested. I was walking down the street. The arresting officer simply wrote that I was driving recklessly because I told her I had a car parked "over there". The day of the court hearing I had no counsel and was told by a clerk that I was going to pay a fine for being drunk. I was astonished to hear the judge give me a 6-month sentence (reduced to 90 days, then serving only 45 days for good behavior) and a $500 fine. I also had to pay another $500 in parking fines.

A prominent police officer in Dallas, Texas reviewed this case at our request and informed my parents and me that jailing was not warranted for this incident, and that the process I underwent was improper and unfair. I reiterate that I was told that I was only going to have to pay a fine for being drunk and, on the sole advice of a clerk in the court, pleaded nolo contendere. All of this was like a kangaroo court, literally. I was hustled along to a conviction for something for which I should not have been convicted. I was at fault, but it was only for being drunk in public. It should not have been for what the judge convicted me.

8: Traumatic brain injury rehabilitation requires a comprehensive plan as described in the "Rebuilding Lives" IO minute VCR tape and brochure from Staten Island University Hospital (DOCUMENT 12).

DISCUSSION: The material in the tape and brochure fully detail the main impairments of traumatic brain injury: neurological, orthopedic and vascular. My case is neurological and I am following neurological treatment per Dr. M_ W_ S_'s letter (DOCUMENT 1). In the brochure I have highlighted in yellow those considerations that pertain to neurological impairment. The tape discusses rehabilitation required for all impairments.

 CONCLUSION

This case would seem to be one of the rare ones when neither side is truly at fault.

On the one side is an individual who received a very serious closed head injury as a youth that would not be obvious to the casual observer. The medical literature as well as the doctors' diagnoses are clear that this type injury makes it very difficult for the injured individual to follow orders or comply with verbal instructions. Such individuals are easily frustrated which leads to anger, disobedience and violence. The sad reality is that the individual views such actions as being appropriate and not anti-social. In addition, the individual in this case was recognized as unable to comprehend or retain subject matter yet was assigned responsible positions certain to trigger the underlying deficit.

On the other side is the U. S. Navy who cannot keep this closed head injured individual in its ranks especially since it did not cause the injury. There was unacceptable conduct which neither side willfully wanted. Separation was mandated.

In this case equity and fairness would dictate that the service member be separated with an Honorable Discharge due to mitigating factors based on his medical condition. Likewise, a change of reason to convenience of the government is equitable by the facts as well as by fairness.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Picture of applicant
Diagnosis from doctor dated September 19, 2000
Doctor's consultation dated July 12, 1991 and final diagnosis July 15, 1991
Bulletin on brain injury, undated, from the Good Samaritan Hospital
Evaluation Report and Counseling Record dated June 2, 1996
Copy of neuropsychological evaluation dated June 11, 1993
Extracts from Head Injury: A Guide for Families
Letter from applicant's parents dated December 18, 2000
Evaluation Report and Counseling Record dated January 6, 1998
Copy of DD Form 214
Extract from Head Injury: A Guide for Families (page 51)
Copy of warrant of arrest - misdemeanor (Local) Form DC-314
Brochure "Rebuilding Lives...one day at a time from Staten Island University Hospital with accompanying VCR tape

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 960222               Date of Discharge: 980106

 Length of Service (years, months, days):

         Active: 01 10 15
         Inactive: 00 00 22

 Age at Entry: 19                          Years Contracted: 3

 Education Level: 12                        AFQT: 49

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 1.67 (3)                OTA: 2.45

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFSM, BER, NATO Medal

 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 3630605.

 Chronological Listing of Significant Service Events :

960117:  Entrance Physical Exam: Applicant denied any medical problem, present health - good, no medications. Deemed physical qualified for enlistment.
960222:  Commenced active duty for 36 months under the Three Year Enlistment Program - Fireman.
960502:  Reported to Service School Command, Great Lakes, IL

960623:  Reported to USS GUNSTON HALL (LSD 44) for duty.

 971004:  NJP for violation of UCMJ, Article 109: Destruction of property other than military property.
         Award: Forfeiture of $100 per month for 1 month. Forfeiture suspended for 6 months. No indication of appeal in the record.
971027:  NJP for violation of UCMJ, Article 134: Assault - indecent.
         Award: Forfeiture of $505 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. Restriction, extra duty and reduction suspended for 6 months. No indication of appeal in the record.
971027:  Civil conviction for drunk in public, Virginia Beach. No further information found in service record. [Extracted from CO's letter dated November 24, 1997].
971101:  Retention Warning: Advised of deficiency (Misconduct due to a pattern of misconduct as evidenced by two nonjudicial punishments in your current enlistment and misconduct due to a commission of a serious offense as evidenced by CO's NJP dated 27 October 1997, UCMJ, Article 134: Assault - indecent and two alcohol related incidents), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        

971105:  Civil Conviction for disorderly conduct, Panama Beach Patrol, Panama City FL. No further information found in service record. [Extracted from CO's letter dated November 24, 1997].

971107:  Vacate reduction to FA awarded at CO's NJP of 27Oct97 due to continued misconduct].

971118:  Civil conviction for reckless driving.
         Sentence: Jail sentence 6 months all but 90 days suspended, fined $500.00, court costs $90.00. No further information found in service record.

971121:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by two nonjudicial punishments and a violation of a page 13 in your current enlistment, misconduct due to the commission of a serious offense as evidenced by CO's NJP of 4 October 1997 violation of the UCMJ, Article 109: Destruction of property other than military property, and CO's NJP of 27 October 1997 violation of the UCMJ, Article 134: Assault, indecent and by reason of alcohol abuse rehabilitation failure as evidenced by your refusal to participate in a level III rehabilitation treatment program.
971121:          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.
971124:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense and by reason of alcohol abuse rehabilitation failure.

971205:  Commander, Amphibious Group TWO 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 980106 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).

Issues 1, 2, 3 and 8. The Board found that the applicant’s pre-service head injury was irrelevant to the applicant’s misconduct. Despite the applicant’s fraudulent enlistment, the Board noted the applicant served for 20 months prior to his first non-judicial punishment or negative counseling. The Board does not agree that the applicant’s head injury was directly related to his willful disregard for the requirements of military discipline and refusal to accept Level III treatment for alcohol rehabilitation. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 4. The Board found that the applicant’s pre-service head injury was not sufficient as a mitigating factor to excuse the applicant’s misconduct. Relief denied.

Issue 5. The Board found no relevance between the applicant’s head injury and his choice to drink alcohol. Relief denied.

Issue 6. The record clearly shows the applicant was 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. There is no documentation to support the assertion that the applicant’s rights were unfairly denied. No relief will be granted on this issue.

Issue 7. The applicant provided no credible evidence to support his assertion that his conviction for reckless driving was improper. Relief denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider 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. However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question. No such error or injustice is evident in the applicant’s service record. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities and substance abuse 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.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, 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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