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NAVY | DRB | 2003_Navy | ND03-01036
Original file (ND03-01036.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND03-01036

Applicant’s Request
The application for discharge review was received on 20030528. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “medical or other than misconduct.” The Applicant requests a documentary record discharge review. The Applicant designated a U.S. Congressman as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that members of congress do not represent Applicant’s before the Board and that written authorization must be obtained from the Congressman. A second application for discharge review was received on 20040302, whereby the Applicant requests a personal appearance hearing, but did not designate a representative. The Applicant was informed that the Board first conducts a documentary record review prior to a personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415. 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 and reason for discharge was discovered by the NDRB. The Board’s vote was unanimous that the character and reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant on the first received application.

Submitted by Applicant on the second received application:

1. “ Previously, I have submitted DD Form 293 with my written statement. However, I am including additional medical records which are directly related to my non-just treatment discharge. My mentor was an O.S.S. officer in WWII who reported directly to General D_ and my integrity is intact, my intentions are honorable and so are all of my actions past and present”!

 2. “ Dear Sir or Mame,

I am appealing the UC determination of disqualification for “misconduct” as misconduct was never proven in a court of military Law and hereby is invalid. If I had been in violation of the UCMJ I would have gone to a Captains Mast and would have been found not guilty of the charges written against me. Also, I requested a Court Martial hearing I was not given a Court Martial hearing and was told that I had to sign administrative separation papers. I spoke with Lt. N_ the legal advisor for that command and she told me I would be separate under honorable conditions and when I asked for the reason she told me it would be an RE4 code and I could not reenlist. She then told me there were no other reasons other than the accusations. As you can see, on my dd214 I refused to sign the copy as I was never in violation of the charges I was accused of. In fact, I was intentionally separated under honorable conditions because I was writing grievance procedures against one of          the commands Chiefs who had threatened me with physical bodily harm. I trust Truth and Justice will prevail over the compulsory acts illegally conducted by this Chief in accordance to Congressional and Supreme Court ruling in relation to the Uniformed Code of Military Justice of 1950. Furthermore, I have served my first “Full Term” and am eligible in accordance to Federal and Pennsylvania State Law for UC benefits.
 I can prove my innocence of the accusations posed against me according to the UCMJ. The United States Navy has not proved in accordance to Military Law that I am guilty of any violations of military code of conduct. Also, The United States Navy has not provided me legal opportunity to prove myself innocent of the charges, and therefore have every written right in the State of Pennsylvania to receive Unemployment Compensation.
 I am petitioning with the help of Senator Specter and Representative Peterson of the State of PA, to the Navy Discharge Review Board for a fully Honorable discharge even though it is not necessary in accordance to PA State law to receive UC benefits. I would appreciate your reconsideration of my Unemployment Compensation determination as there is no valid legally binding proof by Lawful trial of my so called military misconduct. Please therefore award me rightful benefits.
With all due respect, I was never in violation of the UCMJ I can prove it. The fact that I was not given a judicial hearing considering this matter by the USN is enough to show compulsory acts were done by the Malicious Naval Chief who had me separated!
In closing, my mentor was Dr. M_ J. S_. Dr. S_, received his PhD from 737 Washington and Jefferson College, served in the military as one of the first Office of Strategic Service Officers under the infamous General D_. The O.S.S. Later became the CIA. M_ retired as a Naval Officer. M_ also served on President E_’s Board of Education. I believe he chose me as his protege because of my good character and good conduct. I believe I too am a good judge of character and know when malicious compulsory acts were imposed against me from Chief F_ of the Naval School of Health Sciences. I believe Executive Officer of the NSHS can vouch for my good character in Portsmouth Virginia.
I will loose what little possessions I do have and will not have means to travel to work if I am not awarded UC benefits.

Sincerely, signed by the Applicant
(Mr. C_ E. G_ )”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
2 Copies of DD Form 214 (Member – 1)
 Applicant’s Authorization for Use and Disclosure of Health Information to Neurosurgery Groupd dtd Feb 2004 (2 pages)
 Neurosurgery Groups ltr regarding Applicant dtd Oct 28, 2003 (2 pages)
Applicant’s statement dtd Feb 20, 2003 (10 pages)
Applicant’s statement dtd Mar 26, 2003, (2 pages)
Applicant’s undtd partial statement (1)
Dr. N_’s medical report, dtd Feb 21, 2003 (3 pages)
Copy of Applicant’s Birth Certificate
Photo of Applicant (Thanksgiving 2002)
BUPERS Enlisted Orders for Applicant dtd Mar 19, 2002 (3 pages)
Applicant’s Detaching Information Report (Sep 20, 2002)
Applicant’s Reporting Information Report (Sep 20, 2002)
Applicant’s Report - Permanent Change or Station (PCS) Arrival (Sep 20, 2002)
Applicant’s Change – LES Address Update (Sep 20, 2002)
Applicant’s Change – Unit Identification Code (Sep 20, 2002)
Applicant’s Start – Meal Collections (Sep 20, 2002)
Applicant’s Travel Voucher of Sept 20, 2002 (Only Applicant’s Signature) & Travel Voucher Summary (3 pages)
Applicant’s Report – Final Separation (computer screen print-out) (2 pages)
Copy of Applicant’s Active Duty Military Identification Card
Copy of Applicant’s service record (78 pages)
Copy of Applicant’s Birth Certificate with Photos of a room and duffel bag
Applicant’s medical record (47 pages)
Applicant’s second Application (DD Form 293)
Applicant’s service record page pertaining to disciplinary actions (20 pages)
Applicant’s application to the Board for Correction of Naval Record (DD Form 149)
Applicant’s Statement to the BCNR dtd Feb 14, 2004
Applicant’s Statement concerning travel reimbursement
Applicant’s Travel Orders
Course Completion Letter Notification, Food Service Sanitation, dtd Nov 5, 2002
Course Completion Letter Notification, Naval Intelligence, dtd Nov 6, 2002
Applicant’s hand written notes/letters (14 pages)
Letter of Introduction from M_ J. S_, LTJG, USN, RET, dtd Jan 23, 1996
Ltr to the Applicant from Member of Congress (J_ E. P_) dtd Mar 25, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010922 - 010927  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010928               Date of Discharge: 021231

 Length of Service (years, months, days):

         Active: 01 03 04
         Inactive: None

 Age at Entry: 28                          Years Contracted: 4

Education Level: 14½               AFQT: 90

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: *NOB (1)    Behavior: 3.0 (1)                 OTA: 3.0

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None
*None obtained

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

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

 Chronological Listing of Significant Service Events :

021018:  NJP for violation of UCMJ, Article 86: Unauthorized absence: violation of UCMJ Article 92: Failure to obey.
         Award: Forfeiture of ½ pay per month for 2 months (suspended all but $100), restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).

021018:  Retention Warning: Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021018:  Emergency Care & Treatment, NMC Portsmouth, VA: Chief Complaint – Upper to mid neck injury (neck pain). 29 year old, motor vehicle accident last p.m. at 9:00 p.m. Car making illegal u-turn, pt car collided.
         Assessment/Plan: C-spine cleared with normal neuro exam, no districting injury, there was o alcohol involved and no mental status changes and no point tenderness. C-spine clear no need for plain films will treat with antiinflammatory drugs.
          Instruction to Pt: Return to ED for weakness in arms or worsening pain in neck, Motrin as directed.

021020:  Military Sick Call, NAVMEDCEN Branch Clinic: Placed on light duty, no lifting, no physical exercises, no twisting, medicine will make member sleepy.

 021030:  NAVMEDCEN Portsmouth VA: Pt was in auto accident on 17Oct02. Pt complains of continuous pain in neck and back. Pt states most pain is felt when he moves neck, pt feels fuzziness in back of hand. Pt also states that too much movement causes sharp pain in right arm.
         Plan: Rest (light duty), moist heat, continue Motrin.
021113:  NAVMEDCEN Portsmouth VA: 29 year old male pt here for x-ray results. Pt states of persisting neck pain (sharp) with numbness of right hand.
         Assessment: Resolving flex/ext injury (“whiplash”).
         Mid-back trauma (local), resolving.
         Plan: 10 more days of light duty, then should be fit for full duty. Pt only as tolerated weight lifting less than 10 lbs., Motrin, return as necessary.

021113:  Military Sick Call, NAVMEDCEN Branch Clinic: Placed on light duty for 10 days, no lifting of greater than 10 lbs, no physical exercises (may PT if tolerated).

021118:  The suspended punishment of reduction to next lower pay grade and ½ month pay per 2 months is vacated effective 18 Nov 02.

021121:  Charge Sheet:
Charge I: Violation of the UCMJ, Article 92 (4 Specs):
          Specification 1: Did, having knowledge of a lawful order issued by Capt M_, CO of NSHS to wit: CO ltr 1626 Ser 00L/0532 dtd 18 Oct 02, an order which it is his duty to obey, did, on or about 17 Nov 92, fail to obey the same order by wrongfully failing to muster for restriction at 1200.
         Specification 2: Did, having knowledge of a lawful order issued by Capt
         M_, CO of NSHS to wit: CO ltr 1626 Ser 00L/0532 dtd 18 Oct 02, an order which it is his duty to obey, did, on or about 19 Nov 02, fail to obey the same order by wrongfully failing to muster for restriction at 0800.
         ADDITIONAL CHARGES:
         Specification 3: Did, having knowledge of a lawful order issued by Capt
         M_, CO of NSHS to wit: CO ltr 1626 Ser 00L/0532 dtd 18 Oct 02, an order which it is his duty to obey, did, on or ab out 18 Nov 02, fail to obey the same order by wrongfully failing to muster for restriction at 1600.
         Specification 4: Did, having knowledge of a lawful order issued by Capt
         M_, CO of NSHS to wit: CO ltr 1626 Ser 00L/0532 dtd 18 Oct 02, an order which it is his duty to obey, did, on or ab out 18 Nov 02, fail to obey the same order by wrongfully failing to muster for restriction at 1530.
         Charge II: Violation of the UCMJ, Article 92:
         Specification: Having received a lawful order from HM2(SW) P_, a Petty Officer, then known by the said HA C_ E. G_ (Applicant) to be a Petty Officer, an order which is was his duty to obey, did on or about 18 Nov 02, willfully disobey the same by not mustering at 0645 19 Nov 02 with HM1 (FMF) R_.

021123:  Applicant notified of his right in that the commanding officer considering imposing nonjudicial punishment.

021126:  Having consulted with counsel, Applicant refused nonjudicial punishment.

021203:  Applicant notified of intended recommendation for discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.
021209:  Physical Therapy session. Continue treatment as above working toward current goals and progressing as tolerated by pt.
021210:  Physical Therapy session. Pt states US produces funny kind of pain around right c2/3 area. No other problems. Continue treatment.

021212:          Applicant advised of his rights and having consulted 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 and the right to submit a statement.
021213:  Physical Therapy session. Pt had no difficulty with US today. Pain decreased. Continue treatment.
021216:  Physical Therapy session. Pt has indicated overall decrease in pain with occasional reoccurrence of tingling in right arm and right suboccipital area. Pain decreased. Continue treatment.
021217:  CO, NSHS, Portsmouth, VA, directed the Applicant's discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

021218:          Physical Therapy session. Progressing toward PT goals. Pain decreased. Continue treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021231 with a General (Under 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. While the Applicant was being treated for a neck injury, his summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. The summary of service clearly documents that misconduct, commission of serious offense, was the reason for discharge. To change the Narrative Reason for separation would be inappropriate. Additionally, t he Applicant’s discharge characterization accurately reflects his service to his country and an upgrade to honorable would be inappropriate. Relief denied.

The Board does not determine eligibility for unemployment compensation, as suggested, and there is no requirement or law that grants recharacterization solely on the issue of obtaining unemployment compensation. This issue does not serve to provide foundation upon which the Board can grant relief.

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), re-issued October 2002, effective 22 Aug 02 until Present, 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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