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NAVY | DRB | 2004_Navy | ND04-01371
Original file (ND04-01371.rtf) Auto-classification: Denied


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

ex-BMSN, USN
Docket No. ND04-01371

Applicant’s Request
The application for discharge review was received on 20040901. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222. 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 - 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:

1. “And upgrade is needed for me to get veterans medical services for my heart disease agued during my military active duty. I’m seeking help from the veteran’s office for medical help. The heart problem was discovered during my separation physical in July 1992. In which on two separate occasions, I spent a week at a time in Trippler Army Medical Hospital, where I was given Electro Cardio Veridm, to put my heart back in rhythm. I was discharge without knowing what caused this problem. I have some medical records from my last doctor to indicate that problem has progress through the years and no longer have insurance. Help is needed thank you. I’m asking for an upgrade so that I can get treatment that I need to help me with this problem, from the VA Office. Please consider and give me the upgrade I need. Thank you.”

 Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Medical Bill Statement, undated
Echocardiogram, dated May 12, 2003
Progress notes, dated July 8, 2003
Progress notes, dated May 28, 2003
Progress notes, dated May 1, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860228 - 860319  COG
         Active: USN                        860320 - 900319  HON

 Period of Service Under Review :
Date of Enlistment: 900320               Date of Discharge: 921102

 Length of Service (years, months, days):

         Active: 02 07 13
         Inactive: None

 Age at Entry: 23                          Years Contracted: 5

 Education Level: 12                        AFQT: 30

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.44 (5)    Behavior: 2.96 (5)                OTA : 3.56

 Military Decorations: None

 Unit/Campaign/Service Awards: BEA with 2 Stars, SSDR (3), NDSM

 Days of Unauthorized Absence: 7

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

900724:  NJP for violation of UCMJ, Article 116: Breach of peace, violation of UCMJ, Article 128: Assault consummated by battery.
         Award: Forfeiture of $450 per month for 1 month, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
901203:  Applicant appeared in Honolulu District court for having an open container in vehicle and received a $20.00 fine.

920103:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 128 (2 specs):
         Specification 1: Unlawfully strike by slapping and pushing down his wife in August 1991.
         Specification 2: Unlawfully shove wife in the rib cage area in August 1991.
         Charge II: violation of the UCMJ, Article 134:
         Specification: Disorderly on 910912.
         Findings: to Charge I and II and specifications thereunder, guilty.
         Sentence: CHL for 90 days, reduction to E-3.
         CA 920302: Sentence approved and ordered executed.

920103:  Applicant to confinement.

920317:  Applicant from confinement.

920326:  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.
920326:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
920408:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920422:  BUPERS message advising NAVSTA Pearl Harbor, HI of action held in abeyance. Applicant’s statement of awareness indicates Applicant elected right to an administrative discharge board. Unless Applicant subsequently signed a page 13 waiver right, then an Administrative Discharge Board must be convened.

920423:  Applicant to unauthorized absence 0730, 920423.

920427:  Applicant from unauthorized absence 0730, 920427 (4 days/surrendered).

920520:  NJP for violation of UCMJ, Article 86: Absent from organization on 0730, 920423 to 0730, 920427.
         Award: Restriction for 30 days. Punishment suspended for 6 months. No indication of appeal in the record.
920521:  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 and misconduct due to a pattern of misconduct.
920521:  Applicant advised of rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to appear before an Administrative Discharge Board.
920528:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense and a pattern of misconduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

920709:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.

920731:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920803:  Applicant to unauthorized absence 0730, 920803.

920806:  Applicant from unauthorized absence 0730, 920806 (3 days/surrendered).

920827:  PERSUPP DET Pearl Harbor, HI message to BUPERS informing unable to comply with discharge authority since Applicant has not completed separation physical due to ongoing medical problem (heart flutter). Doctor anticipates Applicant will be fit within 30-60 days upon completion of medical evaluation.

920918:  BUPERS message to PERSUPP DET Pearl Harbor, HI advising them to discharge Applicant regardless of separation physical determination that Applicant is unfit for discharge. Medical examiner shall note physical defects on SF 88 and SF 93.

920928:  PERSUPP DET Pearl Harbor, HI message to NAVMEDCLINIC Pearl Harbor, HI advising them to discharge Applicant regardless of separation physical determination that Applicant is unfit for discharge. Medical examiner shall note physical defects on SF 88 and SF 93.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921102 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 1: A discharge for misconduct takes precedence over a possible discharge for medical reasons. 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 award of nonjudicial punishment (NJP) on two occasions for violations of Articles 86, 116 and 128 of the UCMJ, and a special court-martial for violations of Articles 128 and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. 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.

Normally, to permit relief, a error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

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

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

 D. 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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