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


FOR OFFICIAL USE ONLY


ex-AA, USN
Docket No. ND05-01197

Applicant’s Request

The application for discharge review was received on 20050706. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060119. After a thorough review of all available 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 characterization of service shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Due to medication, and unjust punishment.

To whom it may concern:

I would like you to consider upgrading my discharge from the navy from other than honorable. Due to extraneous circumstances, I was discharged from the navy without the benefit of having a court martial. I have a medical condition called hyperhydrosis, what the condition is, is the body starts sweating for no reason at all. My wife and I had put in for collocation. Nothing ever happened with that. I kept asking for orders to go TAD to Virginia, where my wife was stationed at the time. They kept on ignoring me. On the day of the offense, I had a sweating episode and took eight of my pills for my sweating condition to reduce the sweating attack, so I could sleep after back-to-back watches. I took eight of my pills. At the time, I was using the pills at no required amount to help and see what would help with the sweating attacks. I ended up waking up late, upon reporting to my chief I was made to scrub walls, desks, and such and was not told when I would be done. I was denied the option to go to medical. This punishment, along with the rest of the things going on in my life, lead me to no other means but leaving on the spot. At the time, due to my medication, I was not in the right frame of mind. I got some fluids at a gas stationed and filled up my tank to drive to Virginia. I spent the weekend with the wife (who kept on telling me to go back) and drove back to my command. I reported on Monday. Although was faced with the offense of being UA for three days, I was denied the option for court martial for because it was an UA offense. They also told me I could not receive court martial because it was my third offense. Doctor S_, at the Naval Hospital, told me when I saw him that the amount I took was an overdose. Please look over the statement made by Doctor S_ and follow up on the actions taken by my command. I had a no win situation, all they cared about was having a body to fill the command needs and not their people. In addition, I feel that they did not want me to get out of the Navy with the money for my GI bill. Therefore, they did not want to give me any other type of discharge, with my being so close to being in the Navy three years and having prior service from marine boot camp.

I would like you to consider all this when making final decision of my discharged upgrade.

Thanks for your consideration
Respectfully,
[signed]
C_ J. M_ (Applicant) ”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Letter from Naval Hospital Pensacola, Family Medicine Department, Cdr S_, MC, dtd March 15, 2005
Patient education report on Anticholinergics/antispasmodics – oral, dtd January 24, 2005
Applicant’s DD Form 214

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     20000829         COG
         Active: USMC     20000418 - 20000727      ELS

Period of Service Under Review :

Date of Enlistment: 20000830             Date of Discharge: 20030523

Length of Service (years, months, days):

         Active: 02 08 19
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 5 days
         Confinement:              None

Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 36

Highest Rate: AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.8 (4)              Behavior: 1.3 (4)                 OTA: 2 .21 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Sea Service Deployment Ribbon, Navy Unit Commendation, National Defense Service Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events :

000829:  Pre-service waiver enlistment authorization for entry-level separation (USMC, RE-3F) granted.

010427:  Applicant violated the UCMJ, Article 134 (drunk and disorderly conduct, unlawful entry, and indecent language).

010428:  Applicant violated the UCMJ, Article 92 (failure to obey an order or regulation) and Article 134 (drunk and disorderly conduct, unlawful entry and indecent language).

010509:  NJP for violations of the UCMJ, Article 92 (failure to obey an order or regulation, by consuming alcohol under the age of 21).
Violation of UCMJ, Article 134 (5 Specifications of disorderly conduct, drunkenness, unlawful entry, and indecent language).
Specification 1: On 27 and 28 April 2001, drunk and disorderly conduct of a nature to bring discredit upon the armed forces).
Specification 2: On 28 April 2001, unlawfully enter the barracks room of Airman Recruit I_ M_.
Specification 3: On 28 April 2001, unlawfully enter the barracks room of Aviation Electrician’s Mate Airman L_ S_ P_.
Specification 4: On 27 and 28 April 2001, orally communicate to Airman Recruit D_ M_ C_ indecent language.
Specification 5: On 28 April 2001, orally communicate to Airman Apprentice I_ G_ M_ indecent language.
         Award: Forfeiture of $521.40 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

010509:  Retention Warning: Advised of deficiencies (violations of the UCMJ, Articles 92 and 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010807:  Applicant violated UCMJ, Article 91 (insubordinate conduct toward a petty officer) by disrespectfully telling MM2 H_ that he was off work and to f____ off. The Applicant also violated UCMJ, Article 117 (provoking speeches or gestures) by telling MM2 H_ to “f____ off”.

010810:  NJP for violations of UCMJ, Article 91 (insubordinate conduct toward a petty officer, by being disrespectful in language toward MM2 S_ H. H_) and Article 117 (provoking speeches or gestures, by telling MM2 H_ to “f____ off”).
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.

010810:  Applicant fit for confinement.

020202:  USS THEODORE ROOSEVELT (CVN-71) Medical Department: Episodic Hyperhidrosis.

020401:  Naval Medical Center, Portsmouth: Candidate for surgical treatment of Hyperhidrosis.

020912:  Naval Hospital Beaufort, SC: Refill of Robinul for Hyperhidrosis.

030123:  Naval Hospital Beaufort, SC: Refill of Robinul for Hyperhidrosis.

030325:  Retention Warning: Advised of deficiencies (violations of UCMJ Articles 86, 91, and 117) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030507:  Applicant unauthorized absence from 0800 until 1100 on 030507.

030507:  Applicant to unauthorized absence at 1445 on 030507.

030512:  Applicant from unauthorized absence at 1935 on 030512 (5 days).

030515:  NJP for violations of UCMJ, Article 86 (unauthorized absence, 2 Specifications).
Specification 1: Unauthorized absence from 0800 until 1100 on 030507.
Specification 2: Unauthorized absence from 1445 on 030507 until 1935 on 030512.
         Award: Forfeiture of $645.05 per month for 1 month, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

030522:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - commission of a serious offense and misconduct - pattern of misconduct.

030522:  Applicant advised of rights and having elected not to consult with consult with counsel, elected to waive all rights.

030522:  Commanding Officer, Strike Fighter Squadron EIGHT TWO recommended to Commander Naval Personnel the discharge of AA M_ (Applicant) 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. Commanding Officer’s comments: “Airman M_(applicant) has demonstrated his unwillingness to adhere to the Navy’s regulations. I strongly recommend that he be separated from the Naval service for pattern of misconduct with a characterization of Other Than Honorable.”

030523   Commander, Navy Region Southeast directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030523 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. 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 record documents 3 nonjudicial punishments (NJP) for violations of UCMJ Article 86 (unauthorized absence); Article 91 (insubordinate conduct); Article 92 (failure to obey an order or regulation); Article 117 (provoking speeches or gestures); and 5 specifications of Article 134 (disorderly conduct, drunk and disorderly, indecent language, and unlawful entry). R eference (A) defines e ach violation of UCMJ, Articles 91, 92, and 134 (unlawful entry) as the commission of a serious offense, the misconduct for which the Applicant was discharged. Separations under these conditions generally result in a characterization of service as under other than honorable conditions. Relief denied.

The Applicant contends that his misconduct was a result of his overdosing on prescribed medication. To substantiate his claim the Applicant submitted a letter from his current physician and one page from a patient education report. Both of these documents state that an overdose of an anticholinergic may cause restlessness, mental or mood changes, drowsiness, and confusion. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The record documented that the Applicant had been diagnosed with hyperhidrosis and was prescribed Rubinal. This condition was known to the Applicant prior to his enlistment, and he had been using the medication for several months prior to the misconduct, which resulted in his third nonjudicial punishment. The Board noted the Applicant’s own acknowledgement that he chose to leave his appointed place of duty; that he was aware of the seriousness of his actions; and that his wife urged him to return to his unit three days prior to his actual return. These statements contradict the Applicant’s contention that an accidental overdose of prescription medication caused drowsiness and confusion, which resulted in his misconduct. Furthermore, the Applicant was physically and mentally able to work prior to leaving his duty station and able to drive from South Carolina to Norfolk, VA. The NDRB does not consider the Applicant’s medical condition or use of prescribed medication, to be sufficient to exonerate his misconduct. The record clearly reflects the Applicant’s misconduct began early in his enlistment and continued until his discharge. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The Applicant stated as an issue “unjust punishment”. The Board inferred from this statement that the Applicant considers his discharge as punishment. For the edification of the Applicant, the administrative discharge process is separate and distinct from punitive proceedings such as NJP and court-martial. Administrative discharge processing is administrative in nature and not a form of punishment. The a dministrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate process. The Applicant’s issue is without merit. 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. 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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 91, 92, and 134.

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 .

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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