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NAVY | DRB | 2005_Navy | ND0500110
Original file (ND0500110.rtf) Auto-classification: Denied


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

ex-PNSR, USNR(TAR)
Docket No. ND05-00110

Applicant’s Request
The application for discharge review was received on 20041020. 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 20050214. 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. “The discharge was improper and unfair because I received my head injury during my navy service. I was then given inadequate medical attention and never made the appointment to see the neurosurgeon at Kessler AFB. To this day I have a hard time holding a full-time job. I have blinding headaches, can’t hear out of my right ear and have spells of unexpected loss of consciousness. On 26 Apr 1999 (See medical chart) last lines highlighted by me state ”Plan to see Dr S_ at Keesler at 0730 tomorrow” Above that line crossed out says “Pt medevac’d to Keesler ER per ambulance for imaging studies & neurosurg c/s.” Why is this crossed out? 2 nd page highlighted from medical records Pt is discharged on 24 May 1999 from Laurel Wood Mental Health Clinic in Meridian, Mississippi Remark by Pt’s commands says, “pt should not have been sent to input facility-problem more Legal/Admin. Then psych…etc. Is this person a psychiatrist to be able to make medical or psych decisions? Was this placed here so he would save the Navy money to send him for tests at Keesler to neglect the other medical issues? Check 22 Mar 1999, Dr I_ at Rush Foundation Hospital say another MRI should be done in 3-4 mos. D_ was discharged from the Navy in Aug 1999 to avoid having insure proper medical standards were adhered to, and to cover the medical neglect that had already occurred.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated September 30, 1999 (2 pages)
Travel Certificate, dated August 4, 1999
Medical Documents (80 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 981008               Date of Discharge: 990804

 Length of Service (years, months, days):

         Active: 00 09 07
         Inactive: 00 00 20

 Age at Entry: 17                          Years Contracted: 8

 Education Level: 10                        AFQT: 67

 Highest Rate: PNSR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 38

*No marks made available for review

 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 :

981028:  Commenced 4 years of active duty under the TAR enlistment program.

990316:  Applicant admitted to hospital emergency room for treatment of head trauma.

990520:  NJP for violation of UCMJ, Article 86 (7 Specifications), Specification 1: On or about, 1610, 990409, failed to go to appointed place of duty; Specification 2: On or about, 0700, 990417, failed to go to appointed place of duty; Specification 3: On or about, 0200, 990424, absent himself from his organization until on or about 0700, 990426 (2days/S); Specification 4: On or about, 0030, 990501, failed to go to appointed place of duty; Specification 5: On or about, 1800, 990511, failed to go to appointed place of duty; Specification 6: On or about, 0700, 990513, failed to go to appointed place of duty; Specification 7: On or about, 0700, 990515, failed to go to appointed place of duty ; violation of UCMJ Article 91: Insubordinate conduct toward a Senior Chief Petty Officer; violation of UCMJ Article 92: Failure to obey a lawful order; violation of UCMJ Article 134: Obtaining services under false pretenses.
         Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

990707:  NJP for violation of UCMJ, Article 86: On or about 0700, 990601, absent himself from his organization, until on or about 1930, 990706 (35days/S).
         Award: Forfeiture of $479.00 pay per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
990726:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all incidents in current enlistment.

990728:  Chief of Naval Education and Training authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990804 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: 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. The Applicant contends that his misconduct was the result of serious head injury he sustained while on active duty. The Applicant bears the burden of establishing the veracity of his issue through the presentation of substantial and credible evidence to support his issue. While the Applicant’s medical record clearly documents the seriousness of the injury the Applicant sustained, there is no evidence to suggest that the Applicant’s misconduct was a result of those injuries. The Applicant has submitted no documentation or other medical evidence to suggest he was unable to appreciate the nature and quality or wrongfulness of his acts. Likewise, the Applicant submitted no documentation or other evidence to establish his claims of diminished cognition of such a degree that would have precipitated his misconduct. As such, the Board presumes that the Applicant’s discharge was both proper and equitable. Relief denied.

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 here is credible evidence in the record to suggest the Applicant’s service was marred by repeated unauthorized absences, insubordinate conduct, failure to obey a lawful order, and obtaining services under false pretenses. This misconduct resulted in two separate nonjudicial punishment proceedings for violations of UCMJ Articles 86, 91, 92, and 134, all of which are considered to be serious offenses. 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 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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 86, unauthorized absence for a period in excess of 30 days, 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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