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NAVY | DRB | 2003_Navy | ND03-00712
Original file (ND03-00712.rtf) Auto-classification: Denied


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

ex-GMG2, USN
Docket No. ND03-00712

Applicant’s Request
The application for discharge review was received on 20030319. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20040303. 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

 Applicant’s issues, as stated on the application:

 1. “Issue #1: Item 13, DD214 Not all Decorations, Medals, Badges, Citations or Campaign Ribbons Awarded or authorized are properly listed as supported by Section 3, Page 12,13,14 and the Navy Awards Manual for the commands and times I served at these commands listed in Section 3 Pages 5,6,7

Issue #2 Item 14 Military Educations not listed properly as indicated by Section 3 Pages 16,17,18

Issue #3 Item 15a It is improperly checked that I did not contribute to Post Vietnam era Veterans Educational Assistance as noted by Section 3 Page 11

Issue #4 Items 24-28 My discharge was inequitable because it was based on one isolated incident of this type in 91/2 years of service with no similar adverse actions. Also with the history of psychological problems when I was forced off of helpfu l medication and away from counseling a breakdown ensued.

Issue #5 The discharge was improper because the Applicants conviction was not pled, convicted to or sentenced for until post service was used in the discharge proceedings with no Article 32 Investigation conducted, no legal representation given to the service member concerning the waivers signed, and no provided timetable on the point at which any discharge of any type would be carried out thus leaving the service member with no medical care while still suffering psychological and physical ailments as supported in sections 4-14 and unable to secure transportation to the nearest Veterans Administration Medical facility or pre-separation counseling and left with no pay to support himself and reliant on the charity of others. The conduct of the officer(s) conducting the waiver proceedings alone in a hospital room with the service member comes into question as well due to the medications being given him, the fact that he had surgery with general anesthesia the day before and was still suffering an anesthesia hangover and also that the service member was psychologically unsound and thus mentally incompetent for the signing of any legal or binding documentation such as a waiver for discharge or the administrative discharge board which I do not have a copy of or the letter sent by my command to this board after multiple requests to Saint Louis Records Center or Millington Tennessee where I am informed my records (Personnel) still reside. These Issues and complaints are supported by sections 4-14 of my Supporting documents to include showing that my psychological problems have required psychiatric care and medication after the failure of psychological counseling to settle these issues.

Issue #6 A condition of Posttraumatic Stress Disorder was completely ignored and uncared for, this condition was diagnosed on October 31, 1994 by a psychologist consultant that was conducting counseling as listed in Section 4, Page 47 dated October 31, 1994. This condition alone should have warranted an Honorable discharge and being given Veterans Administration care and assistance at that time because my psychological condition required psychiatric care and a breakdown was imminent after my mothers death and previously listed childhood and adult psychiatric/psychological problems including psychosexual issues. This can be supported by the documentation in Section 4 but also by my military medical, personnel and civilian consultant records which I will gladly sign releases for in support of my case if I am provided with these releases.

Issue #7, At the time of the waiver being signed in my mental state I was almost completely unaware of the importance of what I was signing. The only people present in the room were the Executive Officer of the Naval School Explosive Ordnance Disposal (Cmdr S_ I believe?) and myself. I was in a civilian Medical Center (Fort Walton Beach Medical Center) and under the care of civilian medical and psychiatric providers and case managers who had me under there complete care and unable to leave the premises if I desired thus proving my mental incompetence, I also had my brother B_ R_ B_ (P.O. Box 282, Ashby MA 01431 as my durable Power of Attorney as recommended by the Medical Center staff and assisted in appointment of such by Eglin Air Force Jag Office as supported by Section 10 Page 109-114 Case Management notes thus making it imperative he be there or be informed of any such documentation I signed which he had previously done when allowing Fort Walton Beach Police Department and experts from Naval School Explosive Ordnance Disposal search my premises as I was so informed on October 11 or so after being in a blacked out state not remembering the events after 845 am October 4th to late October 11 and still suffering hallucinations from the side effects of the medication as will be supported by the records that can be released to this board by submission of the waiver prepared for such in Section 5 page 64 just for this instance. I was also not given any legal representation of my own from the Judge Advocate Generals office to inform me of my rights or responsibilities in this matter when the officer in question brought me the waiver to sign. Neither was I read my rights at this waiver and I was verbally threatened with dire punishment as I perceived it if I didn’t sign the waiver in question which in my weakened and unstable mental condition only heightened the nightmare I was suffering and living in. It was also never ever indicated to me if the proper procedures of an Article 32 investigation was conducted concerning the matter of Misconduct and the proposed discharge was offered only off of verbal statements and no charges were substantiated until well after the time of discharge thus violating my rights further being I was not given the right of Innocent until proven guilty." This is ultimately disturbing in its preemptive nature.

Issue # 8, As listed in the previous issue the preemptive actions were not only disturbing on this front but also because at the time I was approached for this waiver up until midnight of the night I was released from the Navy I was under the care and “protection” of a physician and psychiatrist in both civilian care and at Naval Hospital Pensacola as listed in sections 4-12. During the past year there had been several catastrophic deaths and suicides at my command (Naval School Explosive Ordnance Disposal, fiscal year 1999) and there was a great concern expressed to me by the Master At Arms (MAAC R_/G_) and the Chief Medical Coreman (HMC F_) that any further problems with accidental deaths or suicides was of great concern to the chain of command and they wanted me to be out of the Navy if such a psychiatric/psychological problem developed again so the Navy would no be responsible. From the time I left the Naval Hospital on December 16, 1999 to the time I was driven to the gate of Eglin Air Force base in Florida I was under the care of these and several other individuals and I was carefully guarded and warned against such attempts to the point of other service members telling me they would take me to the base hospital, patch me up and still kick me out. I was given no choice in my discharge proceedings on this day in question and I was driven straight from Naval Hospital Pensacola to Pensacola Naval Air Station Personnel Support Detachment while still in a weakened and barely walking/mobile state, disoriented, undernourished and underweight and still suffering the effect of more than 2 month of intravenous therapy and Demerol, Lortab/Lorcet, Phenagren and Pain patch withdrawal after being on my back for thi~ long period of time and still tripping over sidewalks and parking posts in my lack of strength and equilibrium. I feel I was railroaded and processed with no convalescent leave to give further care to my still existing conditions including a pussy abcess that was still draining almost an ounce of fluid a day. Thi~ leave is mentioned in the reports in section 4 on the dates from December 10 to December 16 upon my release and though it was never acknowledged, neither was it indicated I would not receive this leave. These and all of my previous issues are strong and supported reasons why my discharge should be changed to honorable and I request this please.

Issue # 9, Another reason I believe my discharge should be changed to Honorable is due to the fact that I served a total of 14 months in the high stress enviroment of the Persian Gulf, first during Operations Desert Shield and Storm and later on a volunteer tour of the USS Lasalle. I volunteered for both of these duties and then volunteered for a 3 later extended to 5 year tour at Special Boat Unit Twenty Two in New Orleans where the physical and psychological strain of the training and planned operations included with the events of my mother dying in 1995 made me unstable as listed but never fully acted upon in Section 4 of my supporting documents which left me with pressures and unstable ground upon which to attempt to rebuild my mental health. I ask that you consider my service, records of training and accomplishment and Awards and medals as listed in Section 3 in thin matter. I had some problem with authority figures after my mother died due to the nature of the psychological/psychiatric breakdown I began suffering, but I was afraid to approach my chain of command or health services at Naval Support activity New Orleans due to the threats I received for any discharge and at that time I suffered from massive credit debt and saw no way to separate myself from either the Naval service or my problems that would allow me to pay off these credit debts. This left me unable to request care and my attitude and problems are reflected in evaluations from 1996 until my discharge.

Issue # 10, As previously listed, during the events that transpired in 1997 I was in a credit crunch over my head and cash strapped. I had a severe credit situation and the pressure of owing money to so many places got to me and there appeared to be no way to resolve the situation. The attitude as I had experienced it in the past while stationed at BMU-2 with a credit problem in 1990 was of such problems staining ones service and it made me feel it would severely affect my military career if I brought it to my chain of command or the family service center on base. I wasn't earning enough money to pay these debts of and in 1994-1996 I had been hired to two part time jobs (Bayou Security in New Orleans and Salons of Manhattan in New Orleans) for extra money but the travel and operational requirements and commitments I was under (NSWU-8, Panama Canal Cuban refugee crisis) in 1995 forced me to quit both times (Training in FT. Knox the second time) or be fired. I was also not being fully reimbursed by the Navy for travel and it was eating into my payment of the credit debts and family obligations to my wife I was cordially but not legally separated from and living in separate domicile from. These problems did not end and in fact in 1999 while at Eglin Air Force Base I had went to the family service center equivalent on base for credit management help because I did not want to have anymore problems. In 1997 the debtors were as follows (not all are listed because of incomplete credit reports): 500$ Navy Federal Credit Union Revolving Line of Credit, 11,273$ Auto Loan with Hibernia Bank, 1500$ Nexcard Account, 1278$ WF Financial, 4600 Navy Federal Credit Union Visa Card, 727$ JC Penny revolving credit account, 345$ monthly apartment rent with Tonti Properties (New Orleans) Peppertree apartments, Phone and Utility bills to do with this apartment, Daily 1$ toll fro the greater New Orleans bridge. Also groceries, gasoline, upkeep on my vehicle, uniform care and travel expenses only reimbursed upon travel documentation submission. These and other short-term expenses were so bad that I was a constant customer at BJ’s Pawn Shop in New Orleans (Metairie). I am asking that due to my psychological problems and career concerns that my wrongful handling of my credit be considered as a mitigating factor in all that happened at the time also in pursuit of an upgrade to an honorable discharge.

Thank You for all of your assistance and for a favorable decision or at least a close consideration in this case.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (4)
Letter from Applicant, dated March 11, 2003
Applicant’s driver’s license
Applicant’s social security card
Affidavit in support of claim for change of discharge (5 pages)
Two pages printed from web site, dated December 4, 2002
One hundred and thirty-nine pages from Applicant’s service/medical records
Department of Veterans Affairs, Extract from 38 CFR 3.12
Letter from Applicant’s neighbor, dated February 4, 2003
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870527 - 870930  COG
         Active: USN                        871001 - 900823  HON
                  USN                       900824 – 920820  HON
                  USN                       920821 – 970624  HON

 Period of Service Under Review :
Date of Enlistment: 970625               Date of Discharge: 991216

 Length of Service (years, months, days):

         Active: 02 05 22
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

 Education Level: 10                        AFQT: 69

 Highest Rate: GMG2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)    Behavior: 2.00 (3)                OTA: 2 .81

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (3), KLM (K), NER (2), HSM, MUC, NEM, NUC, NDSM, SASM (2) SSDR (2)

 Days of Unauthorized Absence: None

 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 :

991110:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): (ensure a clear picture of what/when/why is provided, discharge recommendation should be mentioned also) Petty Officer B_ (Applicant) has amassed a particularly alarming record of unsuitability for Naval service. His service and medical record are rich with referrals to mental health professionals, dating back to September 1989, which diagnosed mild to moderate psychosocial stressors and antisocial traits. He has been afforded multiple opportunities for professional (military as well as civilian) mental health treatment and continued military service, but repeatedly demonstrates serious lapses of military bearing and an inability to adapt to a military working environment. In fact, the professional recommendation following a year of therapy (18 October 1994) with a civilian provider was that “…the member should not be deployed, handle weapons or ammunition. It was also recommended that the member be separated expeditiously from the Navy.” Petty Officer B_ (Applicant’s) security clearance was held in abeyance upon arrival at NAVSCOLEOD pending review of all medical documentation by DoNCAF. Petty Officer B_ was eventually provided with a secret clearance following DoNCAF’s favorable review. His performance has been acceptable, since reporting in October 1997, but based upon his history of aberrant behavior, and his confession of a serious crime, I feel strongly that he should be immediately separated from the U.S. Navy. [Extracted from supporting documents provided by the Applicant.]

991112:  Chief of Naval Education and Training directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. [Extracted from supporting documents provided by the Applicant.]

 Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991216 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 1-3. The Commander, Navy Personnel Command (NPC), Millington, TN, can verify and make changes to the Applicants DD Form 214, concerning entitlements to awards and military education. Applicant may contact NPC at the following address: Commander, Navy Personnel Command, Pers-3, 5720 Integrity Drive, Millington, TN, 38055.

Issue 4. The Applicant states his discharge was based on one isolated incident with no other infractions. A characterization of service of other than honorable is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. Relief denied.
Issues 5-8. Under the presumption of regularity in governmental affairs, the Naval Discharge Review Board may affirm the original decision even if official records (Administrative Discharge Package, Recommendation for discharge from your Commanding Officer, and Waiver of Rights and Privileges) normally reviewed cannot be located. Relief is therefore denied.

Issues 9-10. The Applicant did not provide sufficient documentation to support his claims of the effects that the Persian Gulf had on his service. The Applicant also contends his situation was the result of financial strains. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The following is provided for the edification of the applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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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