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NAVY | DRB | 2002_Navy | ND02-00223

Original file (ND02-00223.rtf) Auto-classification: Denied

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

ex-SA, USN
Docket No. ND02-00223

Applicant’s Request

The application for discharge review, received 020109, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 020731. 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 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, as submitted

1. I am respectfully requesting that you upgrade my "other than honorable conditions" discharge, dated April 13, 1992, to "honorable" or "general under honorable conditions." I believe my case merits your gracious consideration because the discharge was promulgated as the result of medical misdiagnosis and a failure of medical professionals to accurately treat my conditions at my various duty stations during military service.

As my service record shows, I served honorably in the U.S. Navy from 1982 until February 1987. Upon discharge from my first enlistment, I served honorably in the Navy Reserve from January 1988 through July 1988, and then I volunteered for active duty and served again from July 1988 through April 13, 1992 (Enclosure 1).

I am petitioning you to please provide a records review of my case, as I will explain below, because I believe the records support that I experienced, back trauma to LI - L5, vertigo, blackouts, post traumatic stress disorder as a result of an auto accident that occurred 24 December 1989 in the country of Australia (See enclosure 2; pictures of the accident taken by emergency workers). I was in and out of consciousness for about three - five days following the accident. Miraculously, I did not break any bones. But Australia is operated like a socialist state, and everyone is in a national health care system. They viewed me as a foreigner, who had no resources and so they had no way to pay for my treatments, so they literally put me out of the hospital when I could barely walk. A nurse through me a towel and said, "Take your final shower, Laddie." I remember blood coming out of the back of my head as I showered, and I was disoriented, and then next thing I know I was shuffling like an old man to a car, and was helped into it and driven back to Naval Communications Station, Harold E. Holt, Base.

Since the day of the accident, however, I have lived each day with constant, residual physical and psychological reminders of the trauma. To this day, I have glass in my feet, glass imbedded in my back, and my scalp feels like it can move in three places. If I touch my head, I can feel that movement, and fears and memories flood upon me and I experience adrenal flow and anxiety - all related to what I suffered on 12/24/89.

Attached is a January 16, 1990 military medical record (Enclosure 3) that states my auto accident and the many health problems I experienced and continue to experience as a result. Attached is another record, dated 10 January 1990, which states "The L2/3 disc space is narrowed..."

I was very young, in extremely good physical condition and even though I began experiencing problems immediately following the accident, I thought I could overcome them. Following the initial treatments for my condition in the navy, I volunteered for BUD/S, which is Basic Underwater Demolitions School, which is a six month training for diving, following which you go to jump school. Attached is a diagnostic statement, dated 13 February 1990, by Dr. Lieutenant Commander M. H. A_, which states in paragraph 3 that "The finding of a narrowed intervertebral disc at level of L2, L3, although asymptomatic at this time, may lead to arthritis or radicular symptoms on a long term basis. It is uncertain whether or not this finding is related to his most recent episode of trauma."

Dr. A_ wrote this statement in such a way as to provide coverage for me because he suspected that I was going to have life-long ongoing challenges with my conditions related to the auto accident. He was right.

Nonetheless, I did get into BUD/S training. Attached is a physical screening dated June 18, 1990, and a 10 July 1990 record showing I volunteered for the training. Attached is an Administrative Message, dated September 1990, authorizing me for the training. I had worked and studied hard and was only one of two people promoted to E-5 in all the Pacific.

From December 1990 through January 1991, I was in BUD/S. I tried to complete my SEAL training, hoping the pain would go away, but my vertigo, head trauma and back pain prevented me from completing the course.

Attached are records dated, 8 Mar 91 and 4 Mar 91, 3-27-91, 27 Mar 91, 24 Apr 91, 4 May 91, 13 May 91, all of which show numerous problems with post concussive disorder, vertigo, back pain and other problems. These health matters culminated in me having to leave BUD/S. I went UA from BUD/S because life visually was spinning around me. I thought I was losing my mind. Whenever I bent over, I got super dizzy, nauseated and then could not make the world look right again. I was under the most intense trainin, climbing on obstacle courses that were 70 feet in the air. I would pass out during a work out, and then wake up on the ground. I would get up; get oriented, and drive on. My health problems took their toll. I collapsed. People did not understand what was happening to me, and I was too nayve to know how to get the military to see what the VA has seen, that I developed medical issues during that auto accident that have caused me problems to this day!

Attached is a May 91 Administrative Message that authorizes me to leave BUD/S. I left NAB Coronado, California, and got assigned to the USS Detroit. Aboard the Detroit, as a communications specialist, I had to climb radio towers. I was still experiencing vertigo.

The physician aboard my ship, the USS Detroit, AOE-4, Dr. L_, knew that other naval personnel were experiencing difficulty accepting my physical disabilities, and he did not want to make waves by assisting me. Whenever I went to see him, he was very stoic. I had grown increasingly depressed and anxious-as I needed to get my medical issues resolved.

Attached are additional medical records covering the time period from 14 Jun 91, 13 Aug 91 through 9/23/91. Aboard the Detroit, I really ran into a brick wall. The back side of the August 13, 1991 record shows that Dr L_ diagnosed me with Post Traumatic Stress and Alcohol Dependence. I literally was handcuffed and taken to alcohol dependence. I was not a heavy drinker. I was not and am not an alcoholic. "I said to them, I refuse, because I am having dizzy spells. I am not drinking!" Thus it became my will against the Captain's, and I was thrown into the brig for three days, where I drank water and ate nothing but bread. I thought I was going crazy. I couldn't will my problems to stop. I couldn't make the vertigo stop. I was having back pains from the compressed discs, and I had toughed it out for as long as I could. I couldn't get over the fact that I needed help-perhaps for only a short period of time, and now I am only being responded to as if I was a criminal loser. I was having nightmares about my car accident, and so my sleep was disrupted. This made me tired and more susceptible to vertigo. I was in a viscous cycle.

After my accident my work performance diminished, and I also went on an unauthorized leave. I admit these were mistakes at the time, and that I am responsible for them. However, I believe that these mistakes are mitigated by the fact that I was suffering great physical and emotional pain that caused me to behave in an irrational manner that would not have occurred prior to 12/24/89. In particular, my PTSD caused me incredible psychological distress that continues to this day. I hope that you find that the OTH discharge I received is undue punishment for my circumstances and case. Please assist me to adjust to civilian life by providing me with an upgraded discharge that will help me fight my ongoing illnesses and make a more productive adjustment to life.

Enclosure (4) is a copy of my current medical records from the VA hospital in Albany, NY that show how the injuries I sustained are debilitating and require pain management to this day. Additionally I have enclosed treatment records from Arthur McGinn, MD, a VA psychologist who states that the accident of 12/24/89 has caused "occupational and social impairment, with deficiencies in most areas including work, family relations, judgement, thinking, and mood.

I believe Dr. M_ explains exactly what occurred to me psychologically after my accident. My military records show too different sailors. Prior to my accident on 12/24/89 I was a 3.8/4.0 sailor. As you know, sailors are not accepted for SEAL training unless they are top performers. However, after 12/24/89 I exhibited the PTSD symptoms described by Dr. M_ (occupational impairment, poor judgement and thinking ability), and my military performance followed suit.

My PTSD and its psychological affects on me are well documented both during and after my military service. Accordingly, I am requesting an upgraded discharge because my Post Traumatic Stress Disorder significantly contributed to the poor performance that resulted in my second enlistment ending with an "Other Than Honorable" discharge.

I was told in service that I would experience "brain farts." To this day, if I am counting eight scoops of coffee, and my son asks me a question, I go blank and cannot remember if I was on the fourth or the fifth scoop. If I am writing my name, "S_," I sometimes start by making a capital "E," and then will complete my name before I realize what I have done.

These conditions effect me continually on a daily basis, and they were also effecting me when I was in the military.

Thank you for considering my request.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214 (2)
Pictures of automobile accident
Twenty-two pages from applicant's medical record
Copy of enlisted personal action request for BUD/S training
Copy of message dated September 4, 1990
Copy of message dated September 13, 1990
Copy of message dated May 6 1991
Copy of referral for civilian medical care

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     820730 - 820817 RELAD TR TO USNR
         Active: USN                        820818 - 870217 HON
         Inactive: USNR            870218 - 880613 HON
         Inactive: USNR (DEP)     880614 - 880803 COG

Period of Service Under Review :

Date of Enlistment: 880804               Date of Discharge: 920413

Length of Service (years, months, days):

         Active: 03 08 10
         Inactive: None

Age at Entry: 25                          Years Contracted: 6

Education Level: 12                        AFQT: 60

Highest Rate: RM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.40 (5)             Behavior: 3.52 (5)                OTA : 3.48

Military Decorations: None

Unit/Campaign/Service Awards: OSR (2), NDSM

Days of Unauthorized Absence: 30

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 :

910220: Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence from 20 Dec 90 to 18 Jan 91 (29 days).
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Restriction for 2 months, reduction to RM3.
         CA action 910226: Sentence approved and ordered executed.

910919: Applicant diagnosis as ETOH dependent and recommended for Level III treatment.

911017: NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0645-1130, 16 Sep 91, (2) Unauthorized absence 0645, 17 Sep 91 to 0715, 18 Sep 91 (1 day/surrendered), violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer on 17 Sep 91, to wit: asked to provide a document which he was to prepare the day before for RM1. After being asked repeatedly for the document, he started cursing at RM1, in violation of UCMJ, Article 92: Failure to obey lawful order of a petty officer on 17 Sep 91.          Award: Restriction for 30 days, reduction to RMSN. Reduction suspended for 60 days. No indication of appeal in the record.

911017: Retention Warning: Advised of deficiency (A pattern of misconduct as evidenced by an Article 15, UCMJ nonjudicial punishment and a summary court martial during your current enlistment; unauthorized absence; and, the commission of serious offenses, as evidenced by violations of the UCMJ, to wit: Article 91, disrespect in language and deportment toward a petty officer on or about 17 September 1991 and Article 92, failure to obey lawful order of a petty officer on or about 17 September 1991 (where "serious offense" is defined as an offense for which a punitive discharge would be an authorized punishment upon conviction of the offense at a general or special court martial), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911106: Applicant refused Level II or III treatment.

911106: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, alcohol rehabilitation failure and a personality disorder

911106: 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.

911114: Vacate suspended reduction to RMSN awarded at CO's NJP dated 911017 due to continued misconduct.

911121: NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 1855, 5 Nov 91 to 1255, 6 Nov 91 (surrendered), (2) Unauthorized absence from 0715, 19 Nov 91 until 0715, 20 Nov 91 (1 days/surrendered), violation of UCMJ, Article 134: Breaking restriction.          Award: Confinement on bread and water for 3 days, reduction to SA. No indication of appeal in the record.

920303: Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, alcohol abuse rehabilitation failure and personality disorder.

920408: 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 920413 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).

Issue 1: The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience and disrespect for the orders and directives which regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held responsible for his actions. The applicant’s commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, alcohol abuse rehabilitation failure and personality disorder. The Board does not consider the circumstances surrounding the applicant’s stated medical condition and implied incorrect diagnosis to be of sufficient nature to warrant an upgrade to his characterization of service. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have occurred during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. T he NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient post service documentation to warrant an upgrade to his discharge. Relief denied.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.
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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NAVY | DRB | 2002_Navy | ND02-00223

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