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NAVY | DRB | 2004_Navy | ND04-01417
Original file (ND04-01417.rtf) Auto-classification: Denied


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


ex-SN, USN
Docket No. ND04-01417

Applicant’s Request
The application for discharge review was received on 20040917. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. 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 four to one that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

Applicant’s issues, as stated on the application:
1. “I am a former E-3 of the U. S. Navy that was discharged for desertion from NTC of Great Lakes, Illinois. I do know that there is no excuse for my behavior, but I would like to describe the events that lead to my attitude, which I now consider childish.
While I was in Tech Core training at the base, I had contracted acute spinal meningitis. I believe my immune system was low for I was still adapting to the fact that I was in the military, away from my family. I was in more of a state of depression; all I did was drink heavily. After returning from the hospital I began feeling more and more hopeless. Meanwhile, my dad got sick and was hospitalized so I went AWOL to go home for a short while. I began feeling guilty for my parents had raised me to go to the Lord in time of trouble, not drink. I was young and thought alcohol made me forget about my problems. My grades in Tech Core began to decline because my study habits were poor. I was finally switched from Tech Core to Seamen ATD School. Before leaving Tech Core, an outbreak of meningitis resulted in our section of Tech Core being put under quarantine for a few days to prevent the spread of the virus throughout the base. One shipmate of mine had died and another partially lost his hearing. After a few months there I got sick again, meningitis once more. I already had orders to be stationed on the USS Detroit (AOE 4). My spirit had risen for a short time when I thought I was going to a ship; now I felt crushed. I was sent to Bethesda, MD to undergo treatment for a few weeks. I was given an immune shot (that is needed every few years), and sent back to TPU in Great Lakes. Now depressed was not the word to describe how I felt when I was told to just sit and wait for further orders from the medical board. On September 11, 2001 the medical board results returned and stated that would be separated without benefits. I appealed the decision for I was healthy upon entering the Navy, but not at the present time. I should have waited for the court date. I waited, and waited; but being young like I was, I became too frustrated. I wanted to withdraw the appeal, but I was told that it was not allowed. After nine months at TPU, I left, wanting to get out of the military. So I stayed longer than 30 days; I believe 33 days. I was then discharged with an OTH for desertion; I was satisfied at the time. Now sir and ma’am life is hard for real. I have stopped drinking and gotten in church full time also doing some community services. My whole outlook on life has changed. I wish I had finished my time at TPU even if it had taken another 9 months. Nevertheless, I was fit for full duty upon entrance of the military; before leaving I was placed on a No Duty status.
I was an electrical apprentice for a while, but I cannot work in the weather conditions it contains at times. I got sick on the job here therefore I now have a $2000+ medical bill for “unknown reasons” as the doctor puts it. I also need a shot for the meningococcal virus every 4 years to keep this fatal disease from being fatal to me. I cannot afford school, which was one of my main reasons for joining the military; therefore I cannot obtain a job that will suffice. If granted the opportunity I will gladly join the Naval Reserves, since my condition prohibits me from being stationed on a ship. I apologize for my past actions and ask that you as the committee sympathize with a former shipmate who has learned several important life lessons. I ask that you would greatly consider giving me the benefits I deserve. I now need medical treatment that was not necessary before joining the Navy. I developed the susceptibility of meningitis in Tech Core somehow, and the medical board refuses responsibility of the fact. Please help me.
Thank you and God Bless.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Report of Medical Board (8 pages)
Report of Medical Examination (2 pages)
Report of Medical History (2 pages)
Report of Medical Assessment (2 pages)
Medical Record Documents (4 pages)
Modification to TEMADD Travel Orders
Medical Record Documents (55 pages)
Department of Veterans’ Affairs Rating Decision (3 pages)
Service Record Documents (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000515 - 000823  COG
Active:                            None
Period of Service Under Review :
Date of Enlistment: 000824               Date of Discharge: 020211

 Length of Service (years, months, days):
         Active: 01 03 23 (Lost time not included)
          Inactive: None
Age at Entry: 19                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 69
Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                 Behavior: NMF             OTA: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: 56

 *No marks found in record
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).
Chronological Listing of Significant Service Events :

011121:  Applicant commences a period of unauthorized absence.
011227:  Applicant declared a deserter.
020116:  Applicant surrenders from unauthorized absence (56 days).

 020116:  Charges preferred against Applicant for violation of the Uniform Code of Military Justice (UCMJ) Article 86: Unauthorized absence from 011121 until 020116.
020116:  Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He was afforded the opportunity to consult with counsel and waived his right to counsel. The Applicant admitted he was guilty of the charge preferred against him. Specifically, he admitted to violating UCMJ, Article 86: unauthorized absence. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant also understood he had the right to submit a sworn or unsworn statement on his behalf. The Applicant expressed his desire not to make a statement.
020118:  The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020211 under other than honorable conditions in lieu of a trial by court-martial (A and 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).
Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation. Such separations normally supersede disability separations or retirements. Whenever a member is being processed through the PEB, and subsequently is processed for an administrative involuntary or voluntary separation for misconduct, the disability evaluation is suspended. The PEB case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.

In a signed statement, the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He waived his right to consult with counsel. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. The Applicant stated he understood the elements of the offenses with which he was charged. He admitted he was guilty of violating UCMJ Article 86, unauthorized absence for a period of greater than 30 days. The Board found nothing improper or inequitable in the Applicant’s discharge and characterization of service. Relief denied.

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, however, 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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), Change 29, effective
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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