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NAVY | DRB | 2002_Navy | ND02-00380
Original file (ND02-00380.rtf) Auto-classification: Denied


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

ex-SN, USNR
Docket No. ND02-00380

Applicant’s Request
The application for discharge review, received 020214, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed Civilian Counsel as the representative on the DD Form 293. Subsequent to the application, the Civilian Counsel informed the Board that he does not represent the Applicant in regards to his Application for Review of Discharge.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021206. 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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I D_ R. B_ believe that the discharge that I received is improper because I have not been indicted on any crime. I feel that I was being mistreated by my XO CDR N. E. F_ and he didn't want me in the Navy. I was going to make a career out of the Navy until this happened to me. It has been two miserable years and I cannot seem to get a good job with my discharge. I am in school now and I would have liked my G.I. bill to have helped me out.

 Additional Issues submitted to the Board on 021204
2. Applicant was given a general discharge under other that honorable conditions due to the commission of a serious offense. This discharge was based on criminal charges brought against the Applicant in the state of Mississippi, Applicant was not convicted and the case brought against him was dismissed. The state did not have enough evidence to bring the case to trial. Applicant was not charged by the Navy under UCMJ, pertaining to said offense. Accordingly, the interest of justice would require the Applicant's discharge be upgraded to Honorable.

3. Since Applicant was wrongfully discharged from the Navy, he should receive an amount, equal to the difference between the earning he would have received had he not been wrongfully discharged, and the earning he actually received as a citizen. See attached affidavit, evidencing amounts Applicant earned as a civilian after his discharge.

 Documentation
In addition to the service record (there was NO DISCHARGE PACKAGE AVAILABLE), the following additional documentation, submitted by the Applicant, was considered:
Copy of Court Order Motion from Jackson County, Mississippi (2 pgs)
Copy of DD Form 214
Earning Affidavit
Copies of W-2 Earning Summary for 2000 and 2001 (4 pages)
Letter from M_ C_, attorney, dated 15 November, 2002

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 950828               Date of Discharge: 000519

 Length of Service (years, months, days):

         Active: 03 09 04
         Inactive: 00 11 17

 Age at Entry: 19                          Years Contracted: 8

Education Level: 12                        AFQT: 38

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.50 (2)                OTA: 3 .23 [5.0 Evals]

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E", SSDR(2), JMUA, NRSSR

 Days of Unauthorized Absence: Unknown

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

960815:  Ordered to active duty for 4 years under the Seaman Apprentice (SN) program.

970811:  Applicant self referred and recommended by Commanding Officer for Alcohol Screening.

971215:  Retention Warning: Advised of deficiency (Poor Military Performance, to wit: Failure to complete Level II Intensive Outpatient Treatment at Alcohol Treatment Facility, Gulfport, MS), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
980925:  USS STEPHEN W. GROVES (FFG-29) Medical Report: Suicidal ideation. 21 yo wm referred by BMC R_ (LCPO) for vague comments of suicide. Member has been an unauthorized absentee from the ship for 14 days, returning to the ship 980923. Relates he went UA "due to my BM1. It was either I go UA or I went to the brig for punching him." Relates specific incidents of alleged "abuses" of the deck seaman both verbally and physically. Did not relate any specific plan for leaving the ship. Also relates attempting to "slice his wrist with a razor" on 980919 because "I just couldn't deal with it anymore." Has a girlfriend in home port, one child (age 9 months) in South Carolina, and parents as support system. While UA spent one week at parents then last week with girlfriend. Also has two "good friends in crew who I can talk to when I need." Mbr does not relate any specific plans of suicide. States "I felt bad about the razor, it would really hurt my girlfriend and child."

981107:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 981103 having been an unauthorized absentee since 0700, 981002 from USS STEPEN W GROVES (FFG-29).

000309:  USS STEPHEN W. GROVES (FFG-29) Medical Report: 22 Y/O Male with 3 yrs, 10 mos report to sickcall with thought of suicidal ideation for 2 days. Patient states he has been depressed for the past month due to family separation. Patient was arrested in FEB 2000 for suspected child abuse by the state after his daughter was taken to the hospital for injuries received in FEB 2000, at which time the patient’s wife placed a warrant for his arrest. Member was detained for two days and reported back to the ship at which time a protective order was placed on him. Member's wife left with child to Tennessee one week after the arrest. Patient states that’s when he really got depressed. He said that his wife wanted to stay but the state said that they would take their daughter away if she stayed around. Patient states that the depression increased in the last two days due to cancellation of his leave chit by the command based on recommendation from the Family Advocacy Center. Member was looking forward to going to see his daughter for her birthday and spend time with his wife. Pt has history of depression and suicidal ideation with one failed attempt (cut left wrist) in SEP 1998 due to working conflicts with LPO at that time. Patient was evaluated at Mayport, FL and released back to the ship. Patient currently states that he has suicidal ideation for 2 days but denies homicidal ideation. Member states that he has plans (i.e., drink himself to death, hanging, jump off bridge) and has means to execute but is uncertain of a particular one at this time. Patient states "I just want to end it all and relieve the pressure off me." Pt currently taking no medications, denies alcohol/drug abuse or problems.

000323:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

000330:  Kessler Medical Clinic: Patient came to clinic for follow up after being on the VA Inpatient psychiatric unit for suicidal ideation. Patient reported going UA after release from hospital and has been in local area since 000320. Patient reported having 45 days of confinement for going UA and stated he is going to be discharged. Patient denied having any suicidal or homicidal thoughts, plans or intent and stated if he had thoughts of harming himself or others he would bring himself back to the MTF for care. Patient stated he is focused on doing what is appropriate to expedite his discharge. Patient denied having any desire for follow up at this time stating he thought he was handling this well.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000519 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 and 2. A civil conviction is not required for a sailor to be discharged by reason of the commission of a serious offense. The dismissal of charges in a civil or military court does not invalidate processing a sailor for an under other than honorable discharge by reason of the commission of a serious offense. The commission of a serious offense does not require adjudication by non-judicial or judicial proceedings. However, the offense must be substantiated by a preponderance of evidence. The Board presumes that the preponderance of evidence available to the separation authority supported the reason for discharge. The Applicant failed to provide sufficient documentation that demonstrates his administrative separation was improper or inequitable. The presumption of regularity is not overcome in this case. Relief is therefore denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Issue 3. The Board’s charter limits its review to a determination on the propriety and equity of the discharge, which does not include reinstatement of rank, pay, etc. Relief denied.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. Relief not warranted.

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. Representation at a personal appearance hearing is recommended but not required.





Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective
30 Mar 00 until 29 Aug 00, Article 1910-142 [formerly 3630605]. SEPARATION 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 " afls14.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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