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NAVY | DRB | 2003_Navy | ND03-00256
Original file (ND03-00256.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-00256

Applicant’s Request
The application for discharge review, received 20021126, requested that the characterization of service on the discharge be changed to 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 20031017. 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 stated

 1. “ I believe I should have been given a medical discharge, or a discharge reasonable enough to qualify for V.A. compensation. Due to the fact very well documented that injuries aggravated, and sustained while on active duty that prevented me of doing my duties 100% of my ability, and so warrant an upgrade to the next level of discharge. During meps, and recruitment I told Personnel that I was involved in 2 car accidents in which my back was strained. Recruiters told me not to say anything at meps, but I only thought it was right to do say something. The medical doctors there told me I would be fine. During boot camp my back would get aggravated, but I would handle it for I wanted to proceed in a navy career. Not just for the stability, but for also my wife, and daughter. During times when I was working on the flight deck for example carrying fuel up to the flight deck I would feel my back becoming sore, and get worst. On a couple of occasions my right leg would give out on me, and I have fallen down ladder wells. I was seen by Lt. N_ (physical therapist on board the USS John C. Stennis) on several occasions. He thought possible that a nerve was being pinched. He was treating me for different cases noted in my medical report. In April of 2001 I was involved in another car accident in which my truck rolled three times. The next day I reported this to medical, and told them my neck, and back was hurting. Medical noted it down, and gave me some Ibuprofen, told me it was normal after a car accident, and sent me on my way. I told my supervisors on the flight deck about my injuries in which they transferred me to berthing crew from the flight deck. My copy of my medical report will explain the details more, but one thing I would like to stress is a note I found in my medical report written by Lt. N_. It explains that I had recommended shore duty until an MRI was done on my back that Lt. N_ requested. I was denied. In the note Lt. N_, GMO Lt. F_, and LCDR. E_ recommended that I should not make the next underway-period due to my MRI appt. The underway period was May 9, 2001. The note was written on May 7, 2001. I had heard nothing about this. To add to my problems I was going through a bad marriage in which I found my wife being unfaithful while I was in boot camp, so I was going through the procedures of a divorce at this time too. My neck and back was tearing me down physically, and my divorce was tearing me down mentally. I tried many times to request shore duty, but was denied each time. I guess they would rather have had me as a risk factor. What I did to try to solve this was wrong I know this, and was punished for it. When I was serving my punishment confined to the ship. I worked everyday. During one of these days of work I had to paint a bulkhead in which I had to get on a table to do so. When I was getting up on the table I didn’t notice that someone had left a multi-tool with a knife blade sticking out on the table. It stuck me in the knee. My medical report explains this too. I had problems with it ever since. V.A. has denied my claim for my injuries on account of what I did. I totally disagree with this, and I am appealing them with a lawyer. But my life will never be the same physically, and that is why I respectfully request this upgrade, and to get my life back on track.

Thank You,”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Twenty-two pages from Applicant’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20001005 – 20001018      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20001019             Date of Discharge: 20011112

 Length of Service (years, months, days):

         Active: 01 00 24         Does not exclude lost time
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 49

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 102

 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 :

011012:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
011012:  Applicant advised of 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.
011015:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86:
         Specification: Unauthorized absence 0630, 010509 to 0950, 010821 (102 days/apprehended).
         Charge II: violation of the UCMJ, Article 87 (7 specs):
         Specification 1: Missed ship’s movement on 010509.
         Specification 2: Missed ship’s movement on 010525.
         Specification 3: Missed ship’s movement on 010604
         Specification 4: Missed ship’s movement on 010709
         Specification 5: Missed ship’s movement on 010717.
         Specification 6: Missed ship’s movement on 010801.
         Specification 7: Missed ship’s movement on 010805.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Forfeiture of $698.00, confinement for 30 days, reduced to AR.
         CA action 011015: Sentence approved and ordered executed.

011015:  Applicant to confinement.

011019:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

011104:  COMCARGRU SEVEN 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 20011112 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, D, and E).

Issue 1. The Applicant states that he should receive a medical discharge to qualify for VA compensation. Additionally, he states that he was going through a divorce at the time.

The record shows that the Applicant was involved in two motor vehicle accidents and was subsequently seen by competent medical authority. His injuries were treated and the Applicant was released on both occasions without debilitating injuries that would mitigate his unauthorized absence (UA). There is no evidence to suggest that the Applicant should have received a medical discharge. In regards to VA compensation, the department of Veteran’s Affairs determine eligibility for VA benefits and not the NDRB. The Applicant will have to address his eligibility for VA benefits with the VA. The discharge was proper and equitable. Relief denied.

The Applicant’s marital problems do not mitigate his unauthorized absence. There is no evidence to suggest that the Applicant attempted to use his chain of command to assist him with his personal problems. Relief denied.

Unauthorized absence over 30 consecutive days is a serious offense. The Applicant was apprehended on 12 August 2001, ending his 102 consecutive days UA. He was given his rights, sent to Summary Court Martial, and was found guilty of violating UCMJ Article 86 (unauthorized absence for102 consecutive days) and Article 87 (missing ship’s movement), both serious offenses.

 Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question. No errors or inequities were discovered during the execution of this discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. 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 can be considered. Examples of documentation to forward to the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate). At this time, the applicant has not provided sufficient documentation for the Board to consider. Therefore, relief will not be granted.
The applicant is reminded that he is 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. Representation at personal appearance hearing is recommended but not required.
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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.
E. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86 (unauthorized absence for a period in excess of 30 days), and Article 87 (missing ship’s movement), if adjudged at a Special or General Court Martial

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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