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NAVY | DRB | 2004_Navy | ND04-00931
Original file (ND04-00931.rtf) Auto-classification: Denied


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

ex-EWSA, USN
Docket No. ND04-00931

Applicant’s Request
The application for discharge review was received on 20040518. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the submission of DD Form 293, the Applicant designated Veterans of Foreign Wars as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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 3630600.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Because, while we are not judging the Navy, at the time our son got ill, he was not given the medical help he needed; even after the diagnosis by Dr F_ A_ SSN [deleted] Navy doctor at NAVSTA 32 nd St Branch Med in Oct 30 1995; and my calls to captain of Cowpens at that time USS Cowpens (CG 63) at NAVSTA San Diego, CA. Instead he was discharged for misconduct ignoring he was sick and had no control over his illness.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 2. “The applicant indicated above that the Veterans Of Foreign Wars U.S. act as counsel concerning his application. His records were reviewed on November 16, 2004 and the following comments are hereby submitted.

Our review of the service record reveals that this former member had service from June 14, 1993 through December 11, 1995. He was diagnosed with a bipolar disorder and schizophrenia in accordance with the Diagnostic Statistical Manual IV R 296.40 by M_ H_, M.D.

Following due process notifications, he was given an other than Honorable Discharge and is requesting a Medical Discharge. On his behalf, we ask that a change to Secretarial Authority be considered.

After a review of the evidentiary record, we contend that the issue raised on DD 293 amply advanced this former member’s contentions and substantially reflect the probative facts needed for equitable review. We, accordingly, rest this case on the evidence of record.

The Veteran’s Of Foreign Wars U.S. express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consisted in law, regulation, policy and discretion as promulgated by title 10 V.S.C., section 1553, and set forth in 32 C.F.R. part 724 and SECNAVINST 5420.1 74C enclosure (1).
We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for an upgraded discharge.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr from Member of Congress dtd 030722
Ltr from Psychological Services dtd 030124
Applicant’s DD Form 214
Discharge plan from Royale Therapeutic Residential Center dtd 960816
Request for patient release dtd 960712
Ltr from H_ H_, M.D. dtd 990519
Ltr from H_ K_, M.D. dtd 970303
Ltr from St. Joseph Academy dtd 970619
Ltr from C_ & H_ P_ undtd
Ltr from M_ S_ undtd
Ltr from W_ & M_ C_ undtd
Ltr from Rev. S_ K_ dtd 031119
Ltr from N_ D_ Sr. dtd 040427
Petition for Conservator dtd 960701 (11 pages)
Record check frm Flagler County Sheriff’s Office
Ltr from Wal-Mart, Applicant’s employer
5 pages from the Applicant’s service and medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920623 - 930613  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930614               Date of Discharge: 951211

 Length of Service (years, months, days):

         Active: 02 05 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 [24 month extension]

 Education Level: 12                        AFQT: 80

 Highest Rate: EWSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.53 (3)             Behavior: 2.53 (3)                OTA: 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 10

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950914:  NJP for violation of UCMJ, Article 86: Unauthorized absence. Article 87: Missing movement.
         Award: RIR to E-2, forf $430 for 2 mos., 45 das restriction and extra duty.

951101:  NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer. Article 86: Leaving appointed place of duty. Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
951108:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
951108:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
951113:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

951211:  BUPERS 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 19951211 under other than honorable conditions for misconduct due to commission of a serious offense (A & B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issues 1-2. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) proceedings for violation of Articles 86, 87 and 89 of the UCMJ. Article 87, missing ship movement, and Article 89, disrespect toward a commissioned officer, are both serious offenses, thus substantiating the misconduct for which he was separated. 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 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. Additionally, the summary of service clearly documents that misconduct due to commission of a serious offense was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief is not warranted.

The Applicant states that he was not given the help he needed and that he “had no control over his illness.” The Board found no indication in the record or in the documents provided by the Applicant that he was denied medical treatment. Further, the board found insufficient evidence in the record or in the documents provided by the Applicant that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. In addition, there is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not service to provide a foundation upon which the Board can grant relief. 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. 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 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, missing movement, 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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