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NAVY | DRB | 2001_Navy | ND01-00990
Original file (ND01-00990.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00990

Applicant’s Request
The application for discharge review, received 010726, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to COG. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant listed a civilian counsel as the representative on the DD Form 293. Prior to a personal appearance hearing, the NDRB conducted a documentary discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020410. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned there was no impropriety or inequity in the characterization of the applicant’s service or the assigned reason for discharge, at the time of discharge. However, after consideration of the applicant’s post service documentation the Board determined that partial relief is warranted. The Board voted three to two that the discharge characterization shall change and voted unanimously that the reason for discharge shall remain the same. The discharge shall change to: Under Honorable Conditions (General)/ Misconduct – Pattern- frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Propriety:

1. T he applicant's discharge was improper in light of the nature of the offenses and the mitigating circumstances surrounding the offenses which in today's Navy would never warrant an Other than Honorable discharge.

2. The offenses for which he was separated do not warrant the severity of an Other than honorable discharge, as the offenses and extenuating circumstances do not constitute a "significant departure from the conduct expected from members of the naval service with factors including the use of force, or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States, the health and welfare of other members of the naval service or the health and safety of other persons, drug abuse, felony convictions, and some instances of homosexual conduct."

Equity:

3. The applicant's discharge is inequitable and should be re-characterized as fully Honorable in light of extenuating circumstances surrounding his actions, his age and background.

4. The applicant's discharge is inequitable and should be re-characterized as fully honorable in light of his diligent efforts to serve honorably as evidenced by his performance and other positive aspects of his service which outweigh the negative aspects.

 5 . The applicant's discharge is inequitable and should be re-characterized as fully honorable in that his exemplary post-service conduct, achievements and character are such a high caliber as to warrant an upgrade of his discharge. He has shown a verifiable change in life style and has established a concrete record in the community.

6. The reason for Discharge Should be Changed to "Convenience of the Government".

 ADDITIONAL ISSUES, A BRIEF IN SUPPORT OF THIS APPLICATION, AND ADDITIONAL SUPPORTING DOCUMENTATION WILL BE SUBMI7TED AT OR PRIOR TO THE APPLICANTS HEARING.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Brief from applicant's counsel
Letters of reference dated January 31, 2001, October 26, 1999, October 20, 1999, September 28, 1999, November 2, 1995, November 1, 1995, October 27, 1995, October 15, 1995, October 1, 1995, September 1, 1995, and August 30, 1995
Copies of Cultural information on Cuban Americans, one undated, November 2000
Copy of Curriculum Vitae
Copy of applicant's publications
Copy of Variants and Pitfalls in Body Imaging
Copy of Brain Stem Astrocytoma
Copy of Choroid Plexus Papillomas
Copy of Craniopharyngioma
Copy of Hypothalamic Glioma
Copy of Posterior Fossa PNET
Copy of Metastatic Neuroblastoma
Copy of Primary CNS Malignant Rhabdoid Tumor
Copy of Supratentorial ependymoma
Copy of Tuber Cinereum Hamartoma
Copy of Glutaric Aciduria: Background and neuroimaging findings
Abstract
Biographical sketch of applicant
Biography by applicant
Copy of DD Form 214
Seventeen pages from applicant's service record
One page from applicant's medical record
Copy of automotive repair receipt dated December 3, 1985
Letter from applicant’s council dtd 020315
Texas State Board of Medical Examiners Search Results (2 pages)
Certificate of membership: The American Society of Interventional and Therapeutic Neuroradiology
Certification from The American Board of Radiology dtd 010613
Certificate of Post Graduate Medical Training from U.C. Irvine dtd 010630
Certificate of completion Intern in General Surgery- Medical College of Georgia dtd 970630
Doctor of Medicine Degree from The George Washington University dtd 960519
ABMA subspecialty certification
Letter from applicant’s council dtd 020321
Letter of reference from Dr. P. P_ dtd 020313
Medical Board of California certification of Physician and Surgeon
Texas Board of Medical Examiners Identification Card dtd 020130

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     840228 - 840617  COG

 Period of Service Under Review :
Date of Enlistment: 840618                        Date of Discharge: 860801

 Length of Service (years, months, days):

         Active: 02 01 14
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 83

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.05 (4)    Behavior: 2.75 (4)                OTA: 3.05

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 34

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

850619:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $250 per month for 1 month, correctional custody for 30 days, reduction to SR, oral admonition. No indication of appeal in the record.
851205:  Applicant to unauthorized absence 0530, 05Dec85.

860104:  Applicant declared a deserter.

 860108:  Applicant from unauthorized absence 2130, 8Jan86 (34 days/surrendered).
860110:  Retention Warning from USS THACH (FFG-43): Advised of deficiency (You have begun to establish a pattern of misconduct as evident by your extended unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860114:  NJP for violation of UCMJ, Article 86 (2 specs):Unauthorized absence.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days, oral reprimand. No indication of appeal in the record.
860529:  NJP for violation of UCMJ, Article 86: Unauthorized absence for a period of 4 hours and 30 minutes.
         Award: Restriction and extra duty for 45 days, oral reprimand. Restriction suspended for 6 months. No indication of appeal in the record.
860710:  Vacate suspended restriction awarded at CO's NJP of 29May86 due to continued misconduct.

860710:  NJP for violation of UCMJ, Article 86: Unauthorized absence of 4 hours, violation of UCMJ, Article 92: Disobeying a lawful order.
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to SR. No indication of appeal in the record.
860712:  USS THACH notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of frequent involvement of a discreditable nature with civil or military authorities.
860712:  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.
860714:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of frequent involvement of a discreditable nature with civil or military authorities.

860724:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of frequent involvement of a discreditable nature with civil or military authorities.


Discussion

The applicant was discharged on 860801 under other than honorable conditions for misconduct pattern frequent involvement of a discreditable nature with civil or military authorities (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, testimony, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D) at the time of issue. However, after consideration of the applicant’s substantial post service accomplishments and good citizenship the Board determined that partial relief was warranted. The Board voted three to two that the discharge characterization shall change to under Honorable conditions (General) and voted unanimously that the reason for discharge remain the same. The Board determined that the seriousness of the applicant’s misconduct prevented changing the discharge characterization to fully Honorable.

 Issue 1 and 2. The applicant contends that the discharge was improper based on the seriousness of the offenses and mitigating circumstances. The NDRB disagrees. Under current regulations an Other Than Honorable discharge may be assigned for a pattern of misconduct. Additionally, the applicant’s service record shows he committed a serious military offense in his Unauthorized Absence of greater than thirty days, which is and was at the time of his discharge punishable by court martial. There is no evidence that matters of mitigation were not considered at the time of discharge, and the applicant failed to demonstrate that there were matters of mitigation that would make the discharge improper or inequitable. The applicant clearly demonstrated an unwillingness to conform to the standards of conduct required of all service members. Relief based on issues 1 and 2 is not warranted.

Issue 3. The applicant states: “The applicant's discharge is inequitable and should be re-characterized as fully Honorable in light of extenuating circumstances surrounding his actions, his age and background.” The Board found that the applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. 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. The applicant’s documentation concerning “Cultural Information on Cuban Americans” did not sufficiently demonstrate extenuating circumstances in this discharge. Relief based on this issue is denied.

Issue 4. The applicant states: “The applicant's discharge is inequitable and should be re-characterized as fully honorable in light of his diligent efforts to serve honorably as evidenced by his performance and other positive aspects of his service which outweigh the negative aspects.” The NDRB disagrees. The applicant’s documented pattern of misconduct demonstrates that he was unfit for continued service. The applicant was afforded ample opportunity to correct his deficiencies, however he failed to do so. Clearly, the negative aspects of the applicant’s service outweighed his positive contributions. Relief based on this issue is denied.

Issue 5. The applicant states: “ The applicant's discharge is inequitable and should be re-characterized as fully honorable in that his exemplary post-service conduct, achievements and character are such a high caliber as to warrant an upgrade of his discharge. He has shown a verifiable change in life style and has established a concrete record in the community.” The applicant provided verifiable employment references, transcripts from undergraduate and medical school, and character references. The Board noted, since discharge, the applicant has demonstrated a strong commitment to community and excellence. After a careful review of the applicant’s post service documentation, in addition to his official service record and supporting documentation, the Board found that partial relief is warranted.

Issue 6. The applicant states: “The reason for discharge should be changed to "Convenience of the Government".” The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct, pattern of misconduct, was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief based on this issue is not warranted.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective
16 Dec 85 until 05 Oct 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT A PATTERN OF MISCONDUCT.

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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