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NAVY | DRB | 2004_Navy | ND04-00997
Original file (ND04-00997.rtf) Auto-classification: Denied


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

ex-ATAA, USN
Docket No. ND04-00997

Applicant’s Request
The application for discharge review was received on 20040603. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing in Washington, D.C. The Applicant was informed his case would receive a documentary record review prior to any personal appearance hearing. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229. 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 1910-146, formerly Article 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “I am responding to a letter that I received on November 8, 2004. It stated, that I had 30 days to respond and-or submit evidence in support of my request for an upgrade in my discharge. I have a substantial amount of evidence together and is ready as a package to be reviewed by the Naval Review Board. I would also like to note that I am currently in the process of acquiring crucial documents from individuals from my past to help complete this package. One in particular is in my defense for some wrongful acquisitions made against me while in service with the Navy. I am respectfully requesting for your immediate patience and request to be allotted 7 days from December the 8 th to complete and submit my supporting evidence.

Hello my name is (Applicant); I would like to introduce myself to you before I go on about the circumstances surrounding your assistance in upgrading my discharge. I am currently a full time college student (12 + hrs. a semester) and work a full time job (40 hrs. or more) to this date. I have obtained enough credit and managed a respectable GPA from North Harris Community College that I anticipate to graduate from with an Associate in Engineering Technology- Computer Electronics by Summer 2005. I have paid for my own education even without assistance from the GI Bill or government loans or grants. I also currently carry the job title of Assistance Technical Advisor! Field Service Engineer in conjunction with some very respectable companies. I have been a very productive and responsible citizen despite my discharge from the US Navy. I would also like to mention that I have become quite the artist since the end of my cruise and leading up to my discharge from Navy. I have included pictures of an Oil painting that I am willing to donate to the Houston Veterans Affairs Medical Building if the Boards decisions are favorable. I am not using this oil painting as a bribe, but as a donation for the fact of what it stands for. It is my FREEDOM painting (red/white/blue- a soaring dove of peace) and I feel that the disabled veterans from my frequent visits to the VA offices would love to see it and may appreciate it much more than I would. To help cope with their past, revive their faith and to help relieve the pain of what they have been through in the past. I have also included a letter of recommendation, an official college transcript, and pictures as evidence to contest the wrong and unfair discharge decision I received in the past.
I will also include my Issues documents (originally submitted to the Houston VA office) as to why my discharge is to be upgraded and supporting documents as well. I also want to add that my type and character of discharge was improper and incorrect and respectfully requesting to have it upgraded and reinstate my rank of E-4. I am determined to the point that I have requested a personal hearing in Washington at my own expense dealing with this matter. Do to its nature it greatly hinders me from being even more productive in society and is keeping me from a prospective GE career and endeavors. These supporting documents are also included as follows.
I am currently working with a representative from VFW in hopes that an upgrade in my discharge will also allow me to be eligible for medical attention and benefits. In which my medical condition (Pes Planus-collapsed feet) is a serious matter that should he dealt with and not overlooked. I received this condition during my enlistment in the U.S. Navy ever since my time in boot camp. I would also like to state that my condition was severely aggravated during deployment aboard U.S.S. George Washington from 06/00-12/00 (having to be constantly on my feet at least 18 hrs. of the day in unsupportive flight deck boots). I have never had this physical condition in my life before my enlistment. * (see medical issues documents). Now this medical condition is worsening and affecting my everyday lifestyle. So I ask for your support and help on; reviewing, granting an upgraded discharge. and approving benefits and to allow way for treatment for my disability claim.
I would like to mention that I was never a troublesome individual and never had any major infractions or problems during my enlistment (over 3 years of outstanding service). It wasn’t till midway of my cruise (U.S.S. George Washington from 06/00-12/00), after cruise, and up till my discharge from the Navy that any negative issues can be found. If anyone is to find the root causes and origins of these negative issues during my enlistment must start with my deployment. During my deployment is where I was faced with some highly personal issues like never before in my life. During cruise I lost an unborn child (abortion without my consent) and was forced to break relations with my fiancé forever (she couldn’t handle being with a traveling active military personnel). In which I was severely affected mentally! emotionally and the ability to properly deal with these issues was highly unattainable during that time out at sea (surrounding the bombing of U.S.S. Cole). I resorted to a serious form of alcoholism as a wrong way of dealing with my issues instead. To this dated I never contemplate to drinking any alcohol anymore. I would like to add that I honorably served the Navy during that time of crisis despite my traumatic experiences. As I received an Award proving the highest level of duty that I could display surrounding that terrorist act against my fellow shipmates aboard the Cole. Also while on my cruise, I was falsely and wrongly accused of Rape by an individual in order to discredit and sabotage my military career. The charges were dropped and found that the claim was invalid. During that time I was questioned and harassed by Naval detectives and my chain of command because they were quick to pass judgment before the facts and truth were revealed. This treatment carried on even to my command at NAS Oceana. Where I was considered and called by many as a sh*tbag. I am in very good relations with this individual to this date and in constant contact with her (nearly best friends). * (Clarification document by her is to be submitted to you at a later date).
On deployment is also around the same time that I was being physically/mentally’ affected by the Pes Planus medical condition. Despite problems that surrounded me at that time in my life, I still manage to successfully perform all my duties and responsibilities for the Navy during the trying 2000 cruise. I never used my aggravated condition as an excuse from carrying out my military responsibility. I didn’t ever want this condition to stop me from completing my obligation of 4 years to the US Navy. I have included my awards, letters of appreciation, and especially my Pro of the week award, that I received during my cruise on the U.S.S. George Washington to help support that I was a productive and motivated individual despite personal issues and aggravating medical condition. It was up until during the time of the cruise (U.S.S. George Washington from 06/00-12/00) that I had I had very good intentions while enlisted in the U.S. Navy. It seems that all changed especially when my command failed to acknowledge, support, and seek help for the many problems I had to deal with by myself I tried on numerous occasions to speak with my chain of command and nothing was ever considered or resolved in proper and professional manner.
I hope that you can help me in resolving my discharge and respectfully request the help that I need for my painful untreated physical condition. I thank you and hope you review my claim thoroughly and considerably.

III. Legal Counsel

•        My discharge was improper due to misrepresentation of AT3 T------ by Legal Naval Attorney. LT. R-----, S----

 •        LT. R----- suggested that my Administrative board be waived prior to discharge. She failed to review and present medical records and provide evidence for her client. * Witness M--- T----on numerous occasions spoke with LT. R----- regarding this issue. My mother M---- T-----was told by LT. R----- that she would review and present evidence and medical conditions prior to and for the administrative board.
•        I also felt that during my special court martial, I was pressured into pleading guilty to the charges that U.S. NAVY brought against me. During my first session of my Special Court Martial, I did not admit guilt to the charge of (112A). After the failure of me not admitted guilt to this charge, a recess was taking by the court. Then my counsel and I had a talk. I felt that my counsel coaxed me into believing that just admitting guilt, would not be damaging to my record and would help put an end to further imprisonment and legal proceedings. By this time I had served the majority of the imprisonment already. So I just wanted to end the lifestyle and the madness of the Brig, even though I was innocent to the charges.
*        Witnesses present at court martial- AT2 M----- and AT2 B----
*        See transcribe of special court martial proceedings
•        Legal evidence such as proof of false positive on urinalysis were never presented on my behalf for my case. Such evidence consisted of the presentation of many herbal products that I was using and purchased.
•        IN numerous instances (Civilian Urinalysis experts not affiliated with the Navy) provided evidence of false positive results due to herbal/hemp products. In which LT. R---- neglected to present as evidence in my defense
•        My right to request to acquire and retest my urine sample was denied by LT. R----- As a result again evidence was not presented as a result of my innocence to this case.
 •        LT. R----, S----- failed to fully represent the concerns and rights of her client AT3 T----, J-----
 •        LT. R----- suggested to me to write an explanation to my actions and beliefs to the chain of command. Basically to write a statement suggesting my truthful reasoning for a test positive on my urinalysis. LT. R---- was not fully pleased with my truth surrounding the urinalysis results. So LT. R----- then suggested I rewrite it and include the ridiculous idea of not knowingly smoking marijuana while being intoxicated one night. So I have included the statement that I submitted to the chain of command.

IV.      U.S. NAVY and Chain of Command NAS OCEANA

•        This discharge was inadequate because of the reoccurring violation of my rights by the U.S. NAVY and Chain of Command NAS OCEANA.
•        This last issue deals with the timely manner pertaining to my final discharge of the U.S. NAVY.
•        According to the Commander Mid-Atlantic Region, I was to be processed out of the Navy Oct. 21 2001. My final discharge ended up being Oct 25 2001. This is including the 30 days the command can hold the discharge. The following legal documents have been included to support my issues.

I.       Medical issues

•        This discharge was inadequate, because of the apparent serious medical conditions that were overlooked, not resolved, not treated, and not made apparent for the type of discharge I received.
•        I suffer from a medical condition Severe Pes Planus (deformity/collapsed foot arch) in which physically limits me. I have to suffer from this medical condition for the rest of my life. This condition was never present, before I had served in the U.S. NAVY. This condition is a result of prolong and extensive use of military issued footwear (flight deck/boot camp issued steel toes).
•        I’m also requesting immediate medical aids or assistance for resolving all my medical conditions. In regards to my Pes Planus condition, I also wish to be considered for disability, disability benefits, and to be considered as a disabled veteran.
•        I would like to have these conditions to be reviewed at the rank of P.O. 3 rd class (E-4). This is the rank that I had during my medical visitations and evaluations.
•        I also wish to include, that my medical condition (Pes Planus), was never treated properly by any Naval medical professionals. No special corrective shoes were ever made to help alleviate this condition. In addition, no medication or therapy was granted or prescribed for the swelling, cramping, and pain of my knees, back. ankles, and feet.
•        As A result of my medical condition being overlooked and mistreated, I had acquired a healthy lifestyle in order to compensate the lack of medicinal treatment. In which I used and acquired various health herbs for medicinal purposes. I used these herbal products only to find a way or to overcome the constant pain, swelling, and chronic irritation. These various types of herbs were to include the use of hemp, hemp seed products, which are known to cause a false positive on my urinalysis for THC. According to the U.S. NAVY and their regulations, the use of herbal or hemp products was never made an illegal act. I was never warned, or personally signed a page 13, stating that the use of herbal products were against Naval regulations, I only use herbal products in hopes to alleviating my painful medical condition.
I will also like to state that this condition was not present before my enlistment into the U.S. Navy. The following legal documents have been included to support my issues of medical reasoning.”





Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Thirty-two pages from Applicant’s medical record
Letter from Applicant
Resumé
Employment reference letter
College grade report
College transcript
Eight pages from Applicant’s service record
Birth certificate (3 pp.)
Applicant’s unofficial statement
Applicant’s chain of command statement

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980410 - 980504  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980505               Date of Discharge: 011025

 Length of Service (years, months, days):

         Active: 03 04 06 (Does not include lost time)
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 57

 Highest Rate: AT3

 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: SSDR

 Days of Unauthorized Absence: 44

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

010416:  To UA at 0600.

010418:  Surrendered from UA at 0556.

010421:  To UA at 0700.

010423:  Surrendered from UA at 0600.

010424:  To UA at 0600.

010426:  Surrendered from UA at 0600.

010511:  To UA at 0600.

010609:  Surrendered from UA at 2330.

010611:  To UA at 0700.

010612:  Surrendered from UA at 0600.

010612:  To UA at 0900.

010614:  Surrendered from UA at 0600.

010730:  Special Court-Martial.
                  Charge I: Violation of UCMJ, Article 86 (6 specs).
 Specification 1: UA on 010405.
Specification 2: UA on 010416-010417.
Specification 3: UA on 010421-010422.
Specification 4: UA on 010507.
Specification 5: UA on 010511-010608.
Specification 6: UA on 010612-010613.
Charge II: Violation of UCMJ, Article 112a: Used marijuana on 010205.
Finding: Guilty to all charges and specifications.
 Sentence: Confinement for 60 days, reduction to E-2, forfeiture of $300.00 for 2 months.
CA action: 010813. Approved and ordered executed.
010810:  To UA at 0600.

010813:  Surrendered from UA at 0600.

010814:  To UA at 0600.

010818:  Surrendered from UA at 1545.

010822:          UA from 0600 to 0705.

No discharge package
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011025 under other than honorable conditions for misconduct due to drug abuse (A). 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 (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

 Issue 1. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service was marred by a special court-martial for several unauthorized absences and illegal drug use. The documentation and statements provided by the Applicant do not refute the presumption that he was properly and equitably discharged under other than honorable conditions for misconduct due to drug abuse. The Board found nothing to corroborate his claims that he was treated unfairly by his command, was misrepresented by his defense counsel at his special court-martial, unfairly denied treatment or improperly treated for his medical condition, or that he was improperly denied any rights regarding his special court-martial or administrative separation. The Applicant’s medical condition and personal problems at the time do not mitigate his misconduct. In summary, the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Board’s regulations limit its review to a determination on the propriety and equity of the discharge. Therefore, the NDRB has no authority to reinstate lost rank.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB. 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.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for 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. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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

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


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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