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NAVY | DRB | 2003_Navy | ND03-01107
Original file (ND03-01107.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-01107

Applicant’s Request
The application for discharge review was received on 20030612. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Anaheim, California. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20040504. After a thorough review of available 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. “Joining the Navy and serving my country did not prepare me for the betrayal and harassment I would face while standing up for someone's human rights. This is just a brief description, but I hope you understand all the things I’ve had to go through in this three-year period. On May 30, 2000 my best friend, a male in the same squadron as us both raped who is now my wife. I went forward for her and stood by her when everyone turned their backs. They had an Article 32 Investigation and were recommended for General Court-Martial. The guilty was not sent to court martial because the Commanding Officer took advantage of my wife's emotional disability, persuading her to not press charges. Her rapist received 45 days restriction and 45 days extra duty and got to stay in the squadron, while my wife was separated honorably, but they labeled her as an alcohol rehabilitation failure. On August 19, 2000 I went on a 6 month deployment with Vaq 139 and had to see my wife’s rapist every single day. I pleaded to be transferred, discharged, or medically separated, but every attempt was denied. My wife wrote to Congressmen, and high ranking military personnel trying to get me transferred from Vaq 139. I had finally got what I wanted, I was transferred to Vaq 132 under a second chance sailor program. Everything was fine in Vaq 132 except the Commanding Officers were looking at me as if I was tousle maker. I became diagnosed by the Mental Health Department with having Post Traumatic Stress Disorder and was put on 4 different types of antidepressants. My mental diagnosis was also personality disorder, so I pleaded with the doctors and Vaq 132 to give me a medical separation. Captain L_ put in an administrative recommendation to be separated on July 19, 2002. At the end of July I was experiencing a lot of depression, worry, mental and emotional exhaustion. I was at medical what seemed like everyday, and when I wasn’t I was making an appointment because I knew my mental state was serious and little things could set me off, but hey chose to keep me in, unconcerned that I had personality disorder and Post Traumatic Stress Disorder.

2. I transferred from VAQ-139 to VAQ-132 while at 132 I still had to stand strong knowing that my wife’s rapist was “liven’ life” a couple of hangars down from mine. I was being treated no cor [illegible]. I was going for therapy and at one point I was taking 2 different types of anti –depressants mostly to calm me down. My wife and I received threatening phone calls my wife had received a threat herself. You tell me how I should of handled all of this both squadrons found every possible punishment to drive me mad. All I ask is to receive an official honorable discharge so I may receive my M.G.I.B. I mentioned before that I would take this whole case to the media. That would change this to a whole different level. I also want to be compensated for my degrading of pay grade’s and the pain and misery I received dealing with all of this. Mind I’ve made it short. Please understand what my wife and I have gone through! M. A. L_ L_”
Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 3. “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable Conditions to an Honorable.

The FSM served on active service from 8/24/98 to 8/9/01 at which time he was discharged due to Misconduct, due to Commission of a Serious Offense.

The FSM contends the current discharge is improper because his wife was raped and the Command failed to prosecute the rapist. Instead, the FSM had gone on deployment with the rapist still in the unit. This stress caused the FSM to change his focus away from the military lifestyle.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

 Respectfully,”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Mental Health evaluation, dated July 19, 2001 (2)
Cougar Duty Roster (2)
Letter from Lieutenant, JAGC, USNR, dated October 5, 2000 (2)
Statement in support of claim, dated August 29, 2002
Mental Health consultation sheet, dated March 28, 2001
Stressors details, dated August 29, 2002
Authorization and consent to release information to the Department of Veterans Affairs (VA), dated August 29, 2002
Telephonic threat complaint, dated July 25, 2001
Three pages of medical record
Travel certificate, separation without orders, dated August 8, 2001
Letter from Commanding Officer to Applicant’s wife, dated December 22, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     901005 - 910711  ELS
         Inactive: USNR (DEP)     980331 - 980823  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980824               Date of Discharge: 010809

 Length of Service (years, months, days):

         Active: 02 11 16         Does not exclude lost time
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 11                        AFQT: 53

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 1.00 (1)                OTA: 1.50

 Military Decorations: None

 Unit/Campaign/Service Awards: CGUC, AFEM, SSDR, NER

 Days of Unauthorized Absence: 11

 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 :

990610:  NJP for violation of UCMJ, Article 86: Absence without leave from 990520 to 990601 (11 days).
         Award: Forfeiture of $300 per month for 2 months, correctional custody for 30 days, oral reprimand, reduction to AR. Reduction suspended for 6 months. No indication of appeal in the record.
990610:  Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
000826:  NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to his appointed place of duty on 000721, violation of UCMJ, Article 92: Wrongfully maintaining a guest outside of authorized visiting hours in his room in BEQ 4 on 000721.
         Award: Oral admonition, restriction and extra duty for 30 days, reduction to AA. Restriction and extra duty for 15 days and reduction suspended for 6 months. No indication of appeal in the record.
001022:  Vacate suspended reduction to AN awarded at CO’s NJP dated 000826.

 001022:  NJP for violation of UCMJ, Article 117: Wrongfully use provoking words on 000920, to wit: “Why you got to be a dick, R_” and “I’m going to kick your fucking ass”, violation of UCMJ, Article 128: Assault AMH3 W_ on 000927, by spitting in his face..
         Award: Forfeiture of $630.30 per month for 1 month, restriction and extra duty for 15 days, oral admonition. Forfeiture suspended for 6 months. No indication of appeal in the record.
010719:  Mental Health Evaluation: Diagnosis: Personality disorder.

 010724:  NJP for violation of UCMJ, Article 86 (3 specs): (1) Absence from place of duty on 0745, 020716 to 0730, 010717, (2) , Absence from place of duty 0700, 010718 to 1050, 010720, (3) Absence from place of duty on 0700-0910, 010723, violation of UCMJ, Article 91: Disrespectful in language toward AMEC(AW) by saying to him “Are you going to hit me asshole!”, violation of UCMJ, Article 92: Failure to obey order or regulation on 1500, 010716, to wit: report to the squadron with a full sea bag, violation of UCMJ, Article 108: Willfully destroyed a chair, military property of the United States of a value of $69.00, violation of UCMJ, Article 117: Wrongfully use of words on 010716, to wit: “I’ll kick your fucking ass!, violation of UCMJ, Article 128: Assault AZ2 on 010716 by grabbing Petty Officer’s uniform.
         Award: Forfeiture of $521 per month for 2 months, restriction and extra duty for 45 days, reduction to AR. Restriction deferred until appropriate medical evaluation has been completed. No indication of appeal in the record.
010806:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010806:  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.
010807:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

010809:  Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, authority: NAVMILPERSMAN, Article 1910-142.

Partial discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010809 under other than honorable conditions for misconduct due to commission of a serious offense (A). In the absence of the complete discharge package, the Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of available 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. The Applicant contends his disciplinary problems were the result of stress caused by a family situation. 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.

When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge 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 service was marred by 4 nonjudicial punishment proceedings, for a total of 13 or more violations of the UCMJ, to include violations of articles 86, 91, 92, 108, 117 and 128. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Issue 2. The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. 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. With respect to compensation, the NDRB’s authority is limited to the review of equitability and propriety of service member’s discharges.

Issue 3. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Therefore, relief is denied.

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 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.

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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