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NAVY | DRB | 2002_Navy | ND02-01335
Original file (ND02-01335.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND02-01335

Applicant’s Request
The application for discharge review, received 20020923, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 am writing to try to have my discharge upgrade due to medical reason. Before I graduated from boot camp I was told that I had sickle cell traits and asthma. I was informed that if this was a problem I could be kicked out of the U.S. Navy. A doctor explained to me that a person with these condition would not be recommend for seaboard duties, because of the reaction I would have with some of my duties and firer fighting. I was not allowed to entire or complete fire fighting school because of the smoke and the chemical, which you would use in a fire. Example: The OBA, seed, and other breathing devices used while fire fighting fires or escape. This was after a PRI where I had an attack. I was still able to complete graduation after I convinced here that I was going for a land billet and wanted to be a PN. Later I found out that the PN rating was closed overmanned and I receive order to the USS ELLIOT. Report May 6, 996 when my repair locker found out about my not being able to complete fire fighting school, I was then assigned the duties as fire control plotter. Several months past I believe to we were deployed for a 3 days training exercise, during the exercise I slipped and fell down a ladderwhale. Diagnosis: hyperextend knee
During the exercise I fell down a ladderwhale, and suffered an hyper extended knee. We later pulled onto port. I awaken for colors and chow I notice that it was very pain full to move my right leg and more pain occurred when I tried to bend it. I informed my section leader a he instructed me to go to sick call. After I saw the HM ONBAORD he instructed me to be on light duty for a couple of days to see if the condition improved. I was given a leg brace that covered my thigh down to my calf at this point I could not help the division will shipboard duties so the division sent me to work in the kitchen. I was able to work in the kitchen for about a month before the HM decided to send me to a specialist to examine my knee. The specialist informed that the condition would not get better with me on a ship. So I was transferred to limdu status for 6 months. During this time I gained valuable experience in the PN&YN field. I then began to study for MA rate, since this billet is mostly shore based I figured that this would be my next best move. I completed the course and my command approved the MA A. school. I never received the transfer to MA school instead I was shipped back to the USS Elliot after my 6 month had past. When I reported onboard the same HM was there. I thought this was good since he knew the condition of my knee. Two month later he was advanced to Chief and sent to a new Command. By this time I had missed two PRT's on a row. The next years I was in a car accident in which I suffered a shoulder injury. This was in Aug of 97 I was placed on limdu for a while after that, time continued to past and I was still unable to participate in the PRT. I was sent to another doctor for my knee and expressed concern for myself do to the injuries. Their was a time when we were out to sea and the ship began to take heavy rolls. While Myself and BM2 B_ were work on train lessons for the division a desk that we both tied down came lose and rolled towards us I was unable to get out of the way when Bm2 B_ pulled me into another desk before it hit. Bm2 B_ was hit in the process of getting me out the way And may have injured his back. At this point I was going to the Hm onboard so much that he told me to stop coming to sickbay. After that I start asking to see KNEE specialist. I was in so much pain and the onboard Hm could not do any thing to ease the pain. One Specialist prescribed Tylenol 3 I could not take this because it hindered my ability to hand the maneuvers involved with driving the ship. I was later taken from lead helmsman because of the pain standing for so long and reassigned to afterstreeing helms man. My knee problems continued. I believe that due to the usability to participated the PRT I should have been discharge under medical condition. I also believe that being in the medical condition I was in that I should have never been sent to Afghanistan on Deployment 98. 1 was not qualified to fight onboard fires and I believe that with the knee problems I had that I would be more of a burden than positive. If that situation came and someone was injured I would not be able to pick them up and carry them to safety, because of my asthma I could not breath in the suit that is for chemical, biological, warfare, with the asthma and sickle trait I was not to breath compressed air. After a missle attack ihad a been asked to video tape the effects of the bombing. I am asking Congressman A_ to supeona the tapes as I have Panic Attacks when ever I am asked about specific information about the attack! I was discharged 11 days before my military end of duty. After my discharge I was able to work for 4 month before my injuries began to bother again. I was employed with a data entry position. The physical demand of going up and down a ladder all day left me with great pain. I later was employed with a Group Detention center for troubled youth, I only held this position three weeks before physical problems forded me to quit. The strength I needed in legs to restrain violent youth was not there; a major part of this position was restraining male youths. I have been out of work since. About eight months ago I finally I received a chance to have a operation done on my knee, The doctors at Kennedy Memorial. Hospital removed fluid and removed cartilage from the top of my knee. They also had to shave the to of the knee bone. I also had the surgery on my left should also and they found fluid and scared tissue and removed it. They said that this was the problem and caused the pain all this time. I still have a little trouble with my knee and It will have to be drain when swelling begins. These were to injuries that happened while I was in. the US Navy and they did little to help these problems, Since my release from the military I have been suffering from Post pardon War Syndrome, server depression, and anxiety. I've also been seen regular for my asthma and have to take medicine for both conditions daily. This was a direct result of events that happen onboard the USS ELLIOT before my departure. There were many racial threats made by someone on board. There also were anti-Semitic drawling and racist comments as well as literature. I do not know the Identify of this person because threats were made over the phone system onboard. I have had problem with several people in my division due to racist comments and threats against my life and safety. One incident EL shipmate attempted to kill me by blowing me off the ship by straying me with a fire 3 1/2inch fire hose which is capable of producing 50 lbs of pressure. There also was a threat to were a Petty Officer Threatened me and told me to watch my back. Another incident was were a Sn C_ made racist remarks to another shipmate that sleep below me. The comment was you dirty Jamaican nigger. I reported this to my selection leaders and was told to forget about and go to sleep. There was a brief confrontation about this between myself and a BM2 during this altercation a windows broken in First Division birthing, there should have been a order to replace it by the rppo, a position that I formerly held. Several days later the BM2 which was involved made a comment to others in my division stating that he did not trust or like and did not want to work around me. He will heloed off the ship due to an injury. He BM2 had been drink and ran and jumped off the Helo pad down to the main desk and fractured his ankle. There also was another incident when another shipmate named SN F_ called our division chief BMC B_ a "fucking nigger" I filed a complaint that should be on record. I felt deeply offended by the disrespect to a Superior Officer. There was mast procedure and the SN confined to the ship for 30 days and was honorably discharged. While attending a history class I enrolled in while on west pac I had written a paper a class. The topic Racism. I received a A for my work and the teacher said that it was a very nice piece of work. This letter was loss by the command and I have not seen this paper since. I also was taken out of class to perform watches for different people in the division. This class was for college credit and was approved by the C.O. so the people on the class roster would not miss class and be able to get an education while on pac, this also should be documented . My asthma and panic attacks, and seizures have kept me from driving being around crowds and caused hospitalization at least 2 times this year. I've been rushed to the emergence room at least 6 times where I was treated and released after several hours of test and medication.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Standard Form 180, dated September 2, 2002 (2 copies)
Letter to United States House of Representatives from Special Assistant, Congressional Liaison Office, dated April 1, 2002
 Applicant 's DD Form 214
 Applicant 's DD Form 215
Twenty-one pages from Applicant 's service record

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 960124               Date of Discharge: 990111

 Length of Service (years, months, days):

         Active: 02 11 18
         Inactive: None

 Age at Entry: 22                          Years Contracted: 8

 Education Level: 12                        AFQT: 42

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

 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 :

960124:  Applicant ordered to active duty.

 980620:  NJP for violation of UCMJ, Article 86: Absence without leave. On 980615.
         Award: Restriction for 20 days, reduction to SA. Reduction suspended for 6 months. No indication of appeal in the record.
980620:  Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
981022:  Vacate suspended red to SA awarded at CO's NJP dated 980620 due to further misconduct .

981022:  NJP for violation of UCMJ, Article 86: Absence without leave on 0730, 981022, violation of UCMJ, Article 89: Disrespect towards a superior commissioned officer, violation of UCMJ, Article 91: Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer on 981022.
         Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
981023:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct and misconduct due to the commission of a serious offense.
981023:  Applicant advised of his rights and having elected 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.
981023:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

981024:  COMCRUDESGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990112:  DD215, Correction to DD Form 214, issued correcting the discharge date to 99JAN11 vice 98JAN11 with a Net Active Service This Period as 02/11/18 vice 01/11/18.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990111 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. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and adverse counseling entries on another occasion. The Board does not consider the circumstances surrounding the Applicant’s stated condition and implied incorrect diagnosis and treatment to be of sufficient nature to warrant an upgrade to his characterization of service. Administrative separation for misconduct takes precedence over potential separation for other reasons. While he may feel that his medical problems and alleged racist work environment were factors that should mitigate his characterization of service, the record clearly reflects his disregard for the requirements of military discipline. 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.

The Applicant’s discharge characterization accurately reflects his service to his country. 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 18, effective
12 Dec 97 until 29 March 2000, 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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