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NAVY | DRB | 2003_Navy | ND03-01383
Original file (ND03-01383.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND03-01383

Applicant’s Request
The application for discharge review was received on 20030819. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617. 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. “My discharge was improper for the following reasons: I am a 27 year old California resident who has been recently discharged from my command USS Kitty-Hawk CV63 Yokosuka Japan U.S. Navy December 27, 2002. I got recruited in the U.S. Navy on March 31st of 2001 in Yokosuka Naval Base in Japan. My total amount of active duty service with the U.S. Navy is exactly one (1) year, eight (8) months and twenty-one (21) days. April of 2002, I (R_ M_ C_) ( Applicant ) had a “Lipoma” surgery administered while my ship was out to sea. Prior to surgery, the ships surgeon “DR. L_ C_” assured me that my hair will normally return in about a month’s time. My relentless amount of cries for my physical and psychological stress deriving from the outcome of my lipoma surgery to be done was ignored. The large amount of failed attempts and stress to receive help from my chain of command, ships chaplain, and equal opportunity on board ship led to my no longer being able to concentrate nor continue with my career in the U.S. Navy. I was faced with no other alternatives but to purposely no longer attend work for a period of over 30 days and missing ships movement two (2) times. Therefore leading to my “Other Than Honorable” discharge recommended from current ships captain “R_ D_ B_ JR.” commanding officer of the USS Kitty-Hawk CV-63 at that time. I am now a civilian living with my in-laws here in Japan with my wife. I still have this spot on the top of my head (measuring a circumference of a U.S. dollar coin) of missing hair follicles including some strange bumps that hasn’t disappeared ever since after the surgery of April 2002. On December 16,2002 I was then flown from my command (USS Kitty-Hawk CV-63) to “Transient Personnel Unit" (TPU) located in San Diego to start my separations process to be other than honorably discharged (0TH) from the U.S. Navy. The numerous attempts I have contacted Veterans Affairs in Lieu of seeking medical aid; I was forwarded to extreme amounts of numbers eventually leading to a response not to my advantage. The response I received (over the phone) from Veterans Affairs was “Unless I am a disabled Veteran with certain percentile will I only receive any form of medical attention. My DD214 I received from separations in San Diego and my dd 215 received in the mail on March 13, 2003 does not match. Instead of my place of entry into active duty being in Yokosuka, Japan; My DD-215 changed it to Honolulu, Hawaii and my active service period on my DD-215 was reduced to one (01) year, one (01) month and twenty (20) days. In lieu of my mixed up paperwork, missing Federal numbers from W2 delaying me to file taxes for 2002, and all the grief and misfortune I received during my time of active service; I respectfully request to have my (OTH) discharge upgraded to a “General or “Honorable” allowing myself to start a college education so I may return to a normal and pro-active life with my spouse and family.

Today, (Monday, July 28, 2003 0916) I now 28 years old; still have to this day the same problem regarding my spot of missing hair follicles on top of my head. I recently have been going to a Japanese hospital paying out of my own expense to get more answers m how I may resolve my nightmare operation from a military doctor of the U.S. Navy back in April of 2002. I was recently told from my Japanese doctor, that since it has been a relative one (01) year and four (4) months; during my last surgery from a U.S. military doctor. It is more than likely that the military doctor who operated on my lipoma surgery in April of 2002 has burned the roots on my scalp which is the reason in why I still don’t have any hair today. I have copies of my medical paperwork in hand to better facilitate in what may further be the outcome of my dilemma. Please, I humbly request that something is done with my case for all the grief and misfortune I have gone through serving my country on active duty for the U.S. Navy.

Respectfully,

R_ M_ C_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

 2. “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 (OTH) discharge to that of General, Under Honorable Conditions or Honorable conditions.

The FSM served on active service from March 30, 2001 to December 27, 2002 at which time he was discharged due to Misconduct.

The FSM contends the current discharge is improper because it was derived from the stress incurred from Lipoma surgery, wherein he lost a portion of his hair. He was assured by the doctor that the hair growth would return in about a month but it never did and caused a psychological stress that went un-treated. After several failed attempts to receive assistance from the Ship’s Command and Chaplin he made the choice to forgo all duties and ship movements as he could not concentrate long enough to fulfill his obligations.

The FSM’s current request for an up-grade of his discharge is to allow himself to gain education and medical benefits from the Department of Veterans Affairs, so he may return to a pro-active and normal life with his spouse and family.

The FSM’s contentions create 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 ensure a fair standard his administered, 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:
Applicant’s DD Form 214 (Member 1 and 4)
Applicant’s DD Form 215 (Member 1 and 4)
Seven pages of medical records
Letter from Applicant, dated July 28, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010308 - 010329   COG None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010330*     Date of Discharge: 021227

 Length of Service (years, months, days):

         Active: 01 08 28         Does not exclude lost time
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

Education Level: Unknown                  AFQT: 59

 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: 36

*Cannot verify, service record incomplete.
**No marks found in service record.

 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 :

021125:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87 (2 specs): Missing movement.
         Award: Forfeiture of $650 per month for 2 months, restriction and extra duty for 45 days, reduction to AA. No indication of appeal in the record.
021125:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
021125:  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.
021127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

021127:  Commander, Carrier Group FIVE 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 20021227 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 available 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. With respect to nonservice-related administrative matters, i.e., VA benefits, and educational benefits the Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.

Issue 2. 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. The applicant’s service was marred by the award of non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included violation of UCMJ, Article 86: Unauthorized absence, and violation of UCMJ, Article 87 (2 specs): Missing movement. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. 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), 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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