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NAVY | DRB | 2003_Navy | ND03-01168
Original file (ND03-01168.rtf) Auto-classification: Denied


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

ex-PNSA, USN
Docket No. ND03-01168

Applicant’s Request
The application for discharge review was received on 20030624. 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. Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:
Dear DRB,

The following issues are the reason I believe my discharge should be upgraded to HONORABLE. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does no apply to my case because of the evidence I am submitting.

1. Under current standards, I would not receive the type of discharge I did.

A. I believe that I had PTSD that had sonic symptoms reflecting in my behavior and some medical treatment I obtained stationed at PSD North Island, San Diego, California.

1. Medical Records for North Island Naval Base (not obtainable for service member) that will indicate prescribed sleeping pills, service members complaint of hyper sensitiveness in hearing, smelling and moods.

2. Chaplain Report (not obtainable for service member) that will show service members wish to obtain help for worstening conditions after returning from Operation Desert Shield/Storm.

3. Service members statement of the events leading up to my discharge.

2. My average conduct and effeciency rating/behavior and proficiency marks were above average prior to my return stateside from Desert Storm, and assignment to PSD North Island.

A. Service members service record, prior to reenlistment records.

3. I received many awards and decorations for working above and beyond the call of my regular duties.

A. Service members service record;

1. Indicated the flying squad, inport firefighter and weapons movements as extra duties member participated in.

2. As well as extra booklets he qualified in as a communicator (using his prior Navy [U.S. Army Reserves] combat communications skills - 31K).

4. I received letters of recommendation from my duty with Naval Mobile Construction Battalion Forty (NMCB-40).

5. I received letters of support from service members attached to PSD North Island that will indicate my willingness to always assist and learn more about my rate.

6. I had combat service while attached to NMCB-40 home based in Al Juyabal, Saudi Arabia during Desert Shield/Storm.

A. I volunteered to and lead a Terrorist training group that trained allied forces in the event of terrorist attacks, as reflected in service records and medical records.

7. My record of promotions and reenlistment show my willingness and desire to make a life committment to the armed services.

8. There ware other acts of merit during my duty during Desert Shield/Storm including but not limited to; combat communications specialist during scud missle alarms, combat communications specialist for volunteer detachment for Seabee community that participated in joint military exercises and helping civilian communities.

9. I had two prior honorable discharges; U.S. Army Reserves (06/85 - 11/86), U.S. Navy (11/86 - 10/90) in country Saudi Arabia during Desert Shield.

10. I have been a good citizen since my discharge by continuing medical treatment and assistance from veteran representitives.

11. My records of NJP’s indicates only isolated offenses for the time frame after my service in Desert Shield/Storm and attachment to PSD North Island, Ca.

12. My record of UA indicates only minor and isolated offense; that during the entire time of my being gone I kept in contact with my unit and tried to extend my leave from PSD North Island for personal hardship (family hardship) at that time.

13. Personal problems associated with PTSD impaired my ability to serve at PSD North Island, Ca. due to my strict military training and respect for military uniformity at NMCB-40, and the lack there of at PSD North Island, Ca., the amount of rating knowledge used everyday at NMCB-40, and the selective separation of rating use at PSD North Island.

14. Financial problems incurred while in the military were duo to my irresponsibility and immaturity partially due to the murder of my sister while I was attached to U.S.S. NIDNAY (CV-41)

15. My use of alcohol to relieve hyper sensitivity and sleep disorder and other symptoms related to PTSD.

16. Medical and physical problems I had after serving in Desert Shield/Storm (Desert Storm Syndrome)

17. Psychiatric problems I had due to combat duty in Desert Shield/Storm.

18. Certain other problems impaired my ability to serve which include family issues.

19. The punishment I got was too severe compared with today’s standards and acknowledgement of PTSD in service member due to military service in Desert Shield/Storm in Saudi Arabia.

20. The punishment I got at discharge was too harsh - it was much worse than most people got for the same offense. I believe that part of this was because my commanding officer was a witness against me, not allowing me to tell my side of the story, Witnesses I requested were not allowed to attend, the CO of Naval Base San Diego was the NJP judge that could not/would not listen to my evidence due to my commands (PSD North Island) witness (PSD North Island Commanding Officer).

21. I tried to serve and wanted to, but just couldn’t due to the physical and mental conditions occurred during Desert Shield/Storm.

22. My command abused its authority when it decided to discharge me and decided to give me an other than honorable discharge, ignoring my request for military assistance with physical and mental problems and reassignment to another command.

23. When I got back from overseas, I just couldn’t adjust to state-side duty.

24. I had tried to apply for an assignment to another command or transfer to U.S. Navy Reserves, but was unfairly denied or told to forget about it.

A copy is enclosed of my service record while attached to U.S.S. Midway (CV-41), (NMCB-40), compared to PSD North Island, along with all medical records obtainable and VA medical records, statements of support (copies), service members statement and all other records pertaining to discharge upgrade.

Sincerely,

E_ K_ ( Applicant )


Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

“25. 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 General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from November 21, 1986 to October 30, 1990 at which time he was discharged with an Honorable discharge. There is additional active military service from October 31, 1990 to February 14, 1992, at which time the FSM was discharged with a General Under Honorable Conditions discharge for Misconduct - serious offense.

The FSM contends the current discharge is improper because, of a service incurred psychiatric condition (NP) that impaired his judgment. Maintaining that his service records reflect isolated incidents/offenses for the time frame after service in the Persian Gulf.

He states that the period of Unauthorized Absence (UA) was a minor and isolate incident. That he was in contact with his Unit the entire time attempting to extend his leave due to personal/family hardship.

The financial problems were incurred due to his own irresponsibility/immaturity during the time frame which his sister was murder, while he was attached to the U.S.S. Midway.

FSM H_ (Applicant), contends the punishment at the time of discharge was too harsh for the offenses and more severe than would have been assessed by present military standard. He maintains that the trial proceedings were biased and inequitable as he was not allowed to present testimony or witnesses on his behalf due to improprieties between the Commanding Officer who presided as judge and the Unit Commander who served as a witness against FSM H_ (Applicant).

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:
Copy of DD Form 214
Poems (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     861018 - 861120  COG
         Active: USN                        861121 - 901030  HON

 Period of Service Under Review :
Date of Enlistment: 901031               Date of Discharge: 920214

 Length of Service (years, months, days):

         Active: 01 03 01
         Inactive: None

 Age at Entry: 23                          Years Contracted: 2

 Education Level: 12                        AFQT: 46

 Highest Rate: PN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.26 (3)    Behavior: 3.00 (3)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: M-16 Rifle Expert, .45 Caliber Pistol Expert, ASR, SASM(w2b*), SSDR(4), FMFCE, AFEM, NDSM

 Days of Unauthorized Absence: 22

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

901031:  Reenlisted for 2 years at NMCB Four Zero.
910803:  Retention Warning: Advised of deficiency (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning [Extracted from CO’s message].
        
910803:  NJP for violation of UCMJ, Article 86: On or about 0730, 910708 without authority did absent himself from his unit, to wit: PSD North Island San Diego, CA and did remain so absent until on or about 1510, 910722 (14 days/S).
         Award: Forfeiture of $233.00 pay, extra duty for 14 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

911104:  Retention Warning: Advised of deficiency (Financial Irresponsibility), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning [Extracted from CO’s message].

911204:  NJP for violation of UCMJ, Article 86: Knowing of his responsibility to return from his scheduled lunch hour, did on or about 1200, 911104 without authority, fail to go to his appointed place of duty at the time prescribed, to wit: PSD North Island and did remain so absent until on or about 1340, 911104, violation of UCMJ Article 107: On or about 911104 with intent to deceive make a false official statement to PN1 G____, to wit: That he had returned to BLDG 515 at 1215 after scheduled lunch hour and was in ADMIN and Personnel Accounting section, which was totally false, a statement then known by the said PN3 H__ to be so false.
         Award: Reduction to E-2. No indication of appeal in the record.
920115:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCMJ, Article 107, False Official Statement and by reason of misconduct due to a pattern of misconduct as evidenced by a set pattern of failure to pay just debts.
920117:  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 and to submit statements on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened also elected the right to a minimum of two working days to respond to the Notice of an Administrative Board Procedures Action.
920130:  Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

920210:  BUPERS directed the Applicant's discharge under honorable conditions general 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 19920214 under honorable conditions (general) 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 1-9 and 11-25: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his personal problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of non-judicial punishment (NJP) on two separate occasions for unauthorized absence and making an official statement. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

Issue 10: 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Applicant has not submitted any documentation to mitigate his misconduct while on active duty. Relief 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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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