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NAVY | DRB | 2004_Navy | ND04-00814
Original file (ND04-00814.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND04-00814

Applicant’s Request
The application for discharge review was received on 20040406. 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 personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan Area. The Applicant listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A personal appearance review was conducted in Washington, D.C. on 20050315. 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. “I believe I was singled out often by my supervisor. My requests for my MOS training were ignored. When I hurt my back nobody would listen to me or let me go to sickbay. Additionally I was sexually abused by a teacher PM_who was aboard the USS Enterprise. Since being home I have done volunteer work, gone back to school and helped my family where I could. If I could I would go back into the Navy, I realize this would not happen, I only ask for a discharge upgrade.”
Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

2. “Equity. The OTH was too harsh and not appropriate in this case. Upgrade.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Fax Cover Sheet, dated March 16, 2005
Memorandum from T_ S. J_, dated March 16, 2005
Supporting Evidence, Definitions of Schizophrenia Paranoid/Undifferentiated Type, Schizoaffective Disorder to Include Post Traumatic Stress Disorder (27 pages)
Photographs of X-5 Division
Applicant’s Medical History (6 pages)
Applicant’s Comprehensive Profile DOT Profile Report (9 pages)
Applicant’s Resume (2 pages)
Radiology Service Result Report, dated January 28, 2002
Letter from H_ A. C_ MD., dated March 9, 2005 (2 copies)
Letter from S_ L. G_, I.C.M., dated March 3, 2005 (2 copies)
Individualized Service Plan Review, dated October 8, 2002
Letter from Applicant, dated May 20, 2002
Letter from Applicant, undated
Disabled American Veterans Cover Letter dated March 22, 2004
Issue Letter from M_ G. S_, Jr., DAV National Service Officer, to K_ G_, Supervisor, DAV dated March 12, 2004 (2 pages)
Letter from K_ G_, DAV to M_ S_, DAV, Buffalo, NY dated December 3, 2002
Reference Letter from Lt M_ J. F_, Eden Police Department dated December 2, 2003
Letter from Applicant’s Mother to M_ S_, DAV Buffalo, NY dated October 20, 2003
Letter of Verification for Education Invention Program dated January 7, 2004
Reference Letter from R_ A. P_ Sr. (2 pages)
Reference Letter from K_ & T_ S_
Reference Letter from P_ & G_ B_ dated November 19, 2003
Reference Letter from A_ B_
Reference Letter from S_ L_ dated November 8, 2003
Reference Letter from M_ D_, Program Director, Housing Options Made Easy, INC dated October 14, 2003
Letter of Response from N_ H_, R.H.I.A., Medicolegal Specialist dated December 11, 2003
Medical Documents (91 pages)
Hearing Response Letter from Applicant dated April 19, 2004
Issue Letter from M_ E. S_, Jr.. National Service Officer dated March 12, 2004 (2 pages)
Fax Cover Letter to NDRB from K_ S_ dated May 18, 2004
Letter to NDRB from K_ S_, dated May 18, 2004
Letter from K_ N. O_, MD dated November 26, 2001
Letter from K__ N. O___, MD dated July 30, 2001
Letter from D_ K. G_, MD Medical Director and E_ C_, RN Community Mental Health Nurse, Hamburg Counseling Service, INC dated November 7, 2001 (unsigned)
Letter from H_ S_, MD Consulting Psychiatrist, Lake Shore Behavioral Health, INC dated November 8, 2001
Letter from D_ N_, LICSW, Psychiatric Social Worker, to BCNR dated July 24, 2003 (unsigned)
Fax Cover Letter to NDRB dated May 24, 2004
Letter from H_ A. C_, MD Psychiatrist, Niagara Frontier Psychiatric Associate, PLLC dated August 21, 2001
Applicant’s DD Form 214
Reconsideration Letter from DAV dated August 25, 2004
Fax Cover Letter to M_ S_, DAV Buffalo, NY dated May 11, 2004
Fax Copy of NDRB’s Acceptance Letter dated April 26, 2004
Fax Copy of NDRB’s Information Concerning Review Procedures (4 pages)
Fax Copy of NDRB’s Request for Information
Copy of NDRB’s Acceptance Letter dated April 26, 2004
Letter from M_ G. S_, Jr. DAV National Service Officer dated March 12, 2004
Disabled American Veterans Record Cover Letter dated March 17, 2004
Letter from D. A. H_, Veterans Service Center Manager, to Applicant dated November 16, 1999
Copies of Medical/Dental Information (75 pages)
Letter from K_ G_, DAV National Service Officer dated December 7, 2004
Letter from M_ G. S_, Jr. DAV National Service Officer dated September 8, 2004
Copy of Neuropsychological Consultation from Kaleida Health Community Mental Health Center dated August 16, 2004 (8 pages)
Copy of Schizophrenia Information (3 pages)
Fax Cover Letter dated September 16, 2004 (2)
Copy of Schizophrenia Information (7 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980331 - 980408  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 980409               Date of Discharge: 990426

 Length of Service (years, months, days):

         Active: 01 00 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 43
Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)             Behavior: 1.00 (1)                OTA: 1.33

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

981215:  NJP for violation of UCMJ, Article 86: Failure to go to appointed place of duty, violation of UCMJ Article 91: (5 Specifications), willful disobey a lawful order and (1 Specification) of disrespect in language and deportment toward a Corporal.
         Award: Confinement for 3 days on bread and water. No indication of appeal in the record.
990126:  Summary Court-Martial.
         Charge: violation of the UCMJ, Article 91.
         Specification 1: Willfully disobey Second Class Petty Officer on 981215,
 Specification 2: Willfully disobey First Class Petty Officer on 981215,
Specification 3: Willfully disobey Third Class Petty Officer on 990108,
Specification 4: Willfully disobey First Class Petty Officer on 990111,
Specification 5: Willfully disobey Second Class Petty Officer on 990111,
Specification 6: Willfully disobey Third Class Petty Officer on 990112
Specification 7: Disrespect Third Class Petty Officer on 990112,
Specification 8: Willfully disobey Third Class Petty Officer on 990114,
Specification 9: Disrespect Third Class Petty Officer on 990114,
Specification 10: Willfully disobey Second Class Petty Officer 990117,
Specification 11: Willfully disobey Second Class Petty Officer on 990117.
          Findings: to specifications 1 and 2 of the Charge, withdrawn and dismissed without prejudice, to Specifications 3 through 11 of the Charge, guilty, to the Charge guilty.
         Sentence: Confinement for 30 days.
         CA action 990226: Sentence approved and ordered executed.
990209:  Staff Judge Advocate Review: Case found to be correct in fact and law. Summary court-martial had jurisdiction over the Applicant, each specification to which there was a finding of guilty stated an offense and the sentence was legal.
990215:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
990215:  Applicant advised of rights and having not consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
990224:  Applicant released from confinement.

 990311:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990402:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990404:  COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010125:  NDRB documentary record review Docket Number ND00-00826 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990426 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).

Issue 1a: The Applicant contends that his discharge is inequitable because he was often singled out by his supervisors. The evidence of record demonstrates that the Applicant encountered significant disciplinary problems while in the Naval service. As a response to these problems, the Applicant’s chain of command appears to have made considerable efforts to rehabilitate the Applicant and help him conform to the standards of conduct and discipline expected of a sailor. Despite these efforts, the Applicant’s misconduct continued, ultimately resulting in his administrative separation. The Board found the Applicant’s claim to be without merit. Nothing in the record suggests improper or inequitable treatment of the Applicant by his chain of command. If anything, the Board considered the extra attention paid to the Applicant by his superiors a benefit to the Applicant in his attempts to correct his behavior. Relief denied.

Issue 1b: The Applicant contends that his discharge is inequitable because he was the victim of alleged sexual abuse that was a catalyst for his misconduct. The only evidence that indicates the Applicant was a victim of sexual abuse while on active duty are the Applicant’s sworn testimony to the Board and his statements to a clinical psychiatrist some four years after his discharge. There exists no physical evidence, no eye-witness testimony, or no evidence of a prior claim of abuse while the Applicant was still on active duty. Furthermore, the testimony of the Applicant was nondescript and vague in terms of what type of abuse he actually suffered at the hands of his alleged abusers. After a careful review of the evidence submitted concerning the alleged sexual abuse, the Board found that the Applicant has failed to adequately establish his claim. The evidence submitted is simply not of the necessary nature and quality to support a serious claim of sexual abuse. As such, the Board found this issue to be without merit. Relief denied.

Issue 1c: The Applicant contends that his discharge is inequitable because he was denied his military occupational specialty (MOS) training. The Applicant bears the burden of proof, by a preponderance of the evidence, in establishing any of his claims to the NDRB. The only evidence that indicates the Applicant was denied his MOS training are his sworn statements to the Board. The evidence of record indicates the Applicant was guaranteed Airman Apprenticeship training upon his enlistment. The record further reveals that the Applicant was assigned aboard the USS ENTERPRISE (CVN 65) as an Airman Apprentice. Despite being assigned to his guaranteed MOS, the record further reveals that the Applicant was conditionally offered an assignment in engineering if he was able to excel in his Airman Apprentice duties. As a result of this evidence, the Board found that the Navy fulfilled its obligations to the Applicant with respect to his MOS training. The Applicant’s claim is without merit. Relief denied.

Issue 1d: The Applicant contends that his discharge is inequitable because of his post service accomplishments. 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 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. Unfortunately, as of this time, the Board found that the Applicant’s post-service conduct has been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

Issue 1e: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Issue 1f: The Applicant contends that his discharge is inequitable because his entrance testing scores were so low that only recruiter misconduct permitted his entry into the Naval service. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter violated regulations to get the Applicant through the recruitment process. The Applicant was 18 years, had graduated high school, and achieved an AFQT score of 43, 12 points above the absolute minimum acceptable score of 31 at the time of his enlistment. Likewise the Applicant did not self-admit to any illegal drug use or other serious misconduct which might have disqualified him from military service. Based upon this evidence, the record suggests that the Applicant was well qualified to serve in the Naval service at the time of his enlistment and there exists no evidence, which might demonstrate any recruiter impropriety. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 1g: The Applicant contends that his discharge is inequitable because his undiagnosed psychological disorders were the catalysts of his misconduct. In resolving this particular claim, the Board must determine whether it can be said with any certainty that the Applicant was suffering from these mental conditions while on active duty and, if so, were these conditions of such a severity to mitigate his misconduct. In support of his issue, the Applicant submitted a variety of medical documents attesting to the fact that, post-service, he has been diagnosed with schizoaffective disorder, schizophrenia, undifferentiated, chronic, and post-traumatic stress disorder. Furthermore, in the opinion of the Applicant’s doctor, these conditions also existed while the Applicant was on active duty and, according to the Applicant, are the catalysts for his misconduct. The Board does not dispute the veracity of the Applicant’s diagnosis as it relates to his present medical conditions. With respect to the question of the Applicant’s mental health on active duty, the Applicant’s reliance on the medical opinions of his current doctors presents several problems. The Board’s careful consideration of the Applicant’s medical evidence reveals that none of the Applicant’s current doctors evaluated him while he was actually on active duty. Furthermore, the Applicant’s civilian diagnosis comes nearly four years after his active duty stint came to an end.

The Board considered several key pieces of evidence concerning the Applicant’s mental condition while on active duty. Throughout the Applicant’s active duty service he was never evaluated by mental health personnel, even though there was ample opportunity for such treatment. The record reveals that the Applicant was often in the presence of medical professionals and received extensive medical care for back pain. On his separation physical, the Applicant gave no indication of mental problems and declared his physical condition to be “good.” Furthermore, the Applicant received an inordinate amount of attention from his supervisors as a result of his misconduct. Yet, despite this additional scrutiny there is no evidence that any of the Applicant’s superiors seemed to believe his disruptive behavior might be the result of mental disease. The Applicant appeared before an administrative discharge board where he had extensive interaction with his detailed defense counsel and the members of the Board. The record gives no indication that the detailed defense counsel or the members of the administrative discharge board believed that the Applicant’s conduct was of such a nature that it raised questions concerning the Applicant’s mental health. Finally, during his personal appearance hearing, the Applicant indicated to the members of the Board that he was fully aware that he was committing misconduct and furthermore, that he was aware such misconduct was in fact wrongful. Taking all of this evidence together, the Board concluded that the Applicant failed to meet the burden of proof in establishing to this Board’s satisfaction that he was suffering from mental disease or defect while on active duty. As such, the Board concluded the Applicant’s claim of mental disease as catalyst for his misconduct is without merit. Relief denied.

Issue 2: The Applicant, through counsel, contends that his discharge is inequitable because it was too harsh and not appropriate in the Applicant’s case. 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. T he Applicant’s service was marred by disrespect to superiors, insubordinate conduct and refusal to follow lawful orders . This misconduct resulted in nonjudicial punishment proceedings for six separate violations of UCMJ Article 91, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, a summary court-martial conviction for nine violations of UCMJ Article 91, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, and other written and verbal counselings too numerous to count. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.
The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 91, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, if adjudged at a Special or General Court Martial.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004 Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004 Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004 Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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