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NAVY | DRB | 2005_Navy | ND0501254
Original file (ND0501254.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ETSA, USN
Docket No. ND05-01254

Applicant’s Request
The application for discharge review was received on 20050725. The Applicant requested that a documentary record discharge review be conducted to change his characterization of service to honorable, entry-level separation or uncharacterized and the narrative reason for separation to “Medical Discharge Honorable”. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, Disabled American Veterans was designated as his representative.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316. 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 the discharge and the reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Applicant’s issues, as stated on the application:

“The issue concerning this appli c at ion is my invo lun ta r y dis c harge from mi litary service and the inapp ropriate characterization that I re c eived. I was giving a “General Discharge :’ Under H ono rab1e Conditions .’” My sepa ration code is listed as “JKA” for “Pattern of Misconduct.” My alleged “misconduct” is an effect of my undiagnosed sleeping disorder that once it was identified, my command did not make the needed adj ustments that are required under the ADA. Ins tead they treated my disability as if it was a “ discipline problem ” and not a physi c al disability . This attitude toward my disability subjected me to ridicule, racism, fascism, sabotage and harassment from the other sailors attached to the command. The overall treatment that I received from these sailors was condoned and encouraged by t he co m mand as a meth od of “ straightening me o ut”. The com ma nding officers felt that I would perform better if all of the sail or s h elped steer my behavio r into the status quo.

I became increasingly distressed by the treatment that I received from the other sailors. I was new to life on board a nuclear submarine that combined with my sleeping disability did not help me in terms of qualifying watch stations or my ships qualifications. My division was exceptionally hard on me given my disability. The commanding officer, the Executive officer, the Navigator and my division and department chiefs allowed sailors within my division to openly sabotage my efforts to qualify watches and to contribute to the ships overall mission. This open sabotage directly affected my work performance which was severely diminished by the effects of my sleep apnea. ”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable, change of Narrative Reason to Medical Discharge, change discharge to entry level separation.

The FSM served on active service from April 26, 2001 to December 11, 2003 at which time he was discharged due to Pattern of Misconduct.

The FSM contends the current discharge is improper because it deals with his alleged misconduct which were a result of his sleeping disorder. He maintains that if his disorder had been treated instead of treating him as a discipline problem and allowing his peers to “straighten him out”.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Convenience Of The Government, removing the notation of misconduct.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant. ”
Documentation
The following additional documentation, submitted by the Applicant, was considered in addition to the service record:
Letter from Department of Veterans Affairs, dated June 08, 2004 (4 pages)
Letter from Department of Veterans Affairs, (3 pages, undated)
Sleep report from US Naval Hospital, evaluation dated June 13, 2003 (6 pages)
Sleep report from US Naval Hospital, evaluation dated February 10 and 11, 2003 (6 pages)
Five pages from Applicant’s medical record
Applicant’s DD Form 214
Letter from Applicant, dated September 10, 2005
Certificate of death, dated August 31, 2005
Chicago Tribune news article, printed August 16, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010413 - 20010425      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010426             Date of Discharge: 20031211

 Length of Service (years, months, days):

         Active: 02 07 16
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 28

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 90

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.8 (6)              Behavior: 2.1 (7)                 OTA: 2.13 (7)
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Strategic Deterrent Patrol Pin (2)


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

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

010413:  Medical record: Question #16; have you ever been treated for a mental condition. The Applicant answered “NO”.

010413:  Report of medical record: The Applicant answered “NO” to the question, “Frequent trouble sleeping”.

010614:  Medical record: Question #16; have you ever been treated for a mental condition. The Applicant answered “NO”.

010614:  Report of medical record: The Applicant answered “NO” to the question, “Frequent trouble sleeping”.

020801:  Evaluation and counseling report dated 020801: Seaman R_ (Applicant) lacks a sense of responsibility, received a letter of instruction from the Executive Officer for his lack of responsibility to show up to work on time.

020818:  Record of Medical care: Rule out sleep disorder, member is responsible for actions, return to duty/medically fit for full duties.

020913:  Evaluation and counseling report dated 020913: Due to substandard performance Seaman R_’s (Applicant) recommendation for Petty Officer Third Class is removed. SN R_ (Applicant) is delinquent in divisional qualifications. Member needs excessive supervision and his production frequently needs rework. SN R_ (Applicant) creates conflict.

030210:  U. S. Naval Hospital, Bremerton, Washington, sleep report.

 030412:  Report and disposition of offense(s): Violation of UCMJ Article 92 (failure to obey order or regulation, failed to remain awake at watch station at 2115 on 030412).

030613:  U. S. Naval Hospital, Bremerton, Washington, sleep report. Patient attempted CPAP (continuous airways pressure machine) trial and achieved 4 hours of sleep.

030915:  Applicant unauthorized absent from 0730 until 0828 on 030915.
        
031007:  NJP for violations of the UCMJ, Article 86 (unauthorized absence, from 0730 until 0828 on 030915) and Article 113 (misbehavior of sentinel or lookout). [Extracted from Commanding Officer’s letter dated 031030.]
         Award: Oral admonition, restriction for 60 days, reduction to E-3. No indication of appeal in the record.

031007:  Retention warning issued 031007. [Extracted from Commanding Officer’s letter dated 031030.]

031019:  Violation of UCMJ Article 92 (failure to obey order or regulation) at 2310 031019, derelict in the performance of his duties in that he failed to stand his watch properly as Battery Charging Electrician.

031028:  NJP for violation of the UCMJ, Article 92 (failure to obey order or regulation, at 2310 on 031019, failed to stand his watch properly).
         Award: Reduction to E-2. No indication of appeal in the record.
031028:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct.
031029:  Following consultation with counsel the Applicant, elected his rights to submit a statement to the separation authority, to a general courts-martial convening authority review and to obtain copies of the documents used to support the basis for the separation.
031029:  Medical review for separation from active duty. Seen at sick call for excessive daytime sleepiness on 06Dec01, 20Jun02, 18Aug02, 17Jan03 and 02Jun03. Remarks: Member given a CPAP machine for definitive treatment of OSA and found fit for submarine duty.
031029:  ETSN (SS) R_ (Applicant) submitted his statement to Commander, Submarine Group 9 via Commanding, Officer USS PENNSYLVANIA (SSBN 735, Gold) for consideration by the separation authority. Specific items for consideration: My command has focused on my personal and professional problems. My problems have been chronic lateness and irregular sleeping during daytime hours on watch. Hazing has come in many different forms. The commands stand is that these problems are the result of not taking personal responsibility for my actions. I have been diagnosed with sleep apnea and prior to service ADHD. I was not welcomed by my division and was handed off multiple times from mentor to mentor. The shipmates in my division are notorious for stowing other person’s property without their knowledge.
I received help from the division on moving in and out of housing and traveling to and from appointments.

031030:  Medical Department Representative’s statement to Commanding Officer, USS PENNSYLVANIA (SSBN 735, GOLD). ETSN R_ (Applicant) was diagnosed with Attention Deficit Disorder while a child. This is a disqualifying condition and would require a waiver for enlistment. There is no mention of this condition by the service member when given the opportunity to disclose. Squadron 16 medical asked if a psychiatrist had ever seen him. ETSN R_ (Applicant) answered no. The member’s statement is in conflict with the information recorded in his medical history.
031030:  Commanding Officer, USS PENNSYLVANIA (SSBN 735, GOLD) requested that Commander, Submarine Group 9 conduct a general courts-martial convening authority review in the case of ETSA R_ (Applicant). Specific issues addressed: SA R_ (Applicant) states he has suffered unrelenting and unending hazing. Although he received training concerning hazing, he never brought potential hazing issues to the chain of command’s attention. He has had numerous counseling sessions with the Commanding Officer, Executive Officer, Chief of the Boat, Chaplain W_, Chaplain R_, LT P_. Other opportunities to report hazing include, numerous medical examinations, and family advocacy appointments. During none of these sessions did SA R_ voice concerns of hazing, abuse, or mistreatment. He has falsely accused shipmates of stealing property though he routinely left his property unsecured. SA R_’s problems are not solely chronic lateness and irregular sleeping. They encompass indebtedness to the Social Security and the state of Illinois and a problematic marriage. SA R_ has stated to the Commanding and Executive Officer’s that he had not been using the continuous airways pressure machine on a regular schedule. In an effort to assist the SA with his performance and confrontational attitude he was reassigned a new mentor on two separate occasions. He states that he does not desire to appeal the administrative separation.

031030:  Commanding Officer, USS PENNSYLVANIA (SSBN 735) (GOLD) directed discharge with a general (under honorable conditions) by reason of misconduct do to a pattern of misconduct. Commanding Officer’s comments: “Seaman Apprentice R_(Applicant) has committed repeated misconduct by continuously failing to obey lawful orders and regulations as evidenced in enclosure (1). Accordingly, he has no potential for productive naval service. By separate action he was disqualified from duty in submarines. Seaman Apprentice R_(Applicant)’s service will be characterized as GENERAL (Under Honorable Conditions).”

031125:  Commander, Submarine Group 9 reported to Commander, Navy Personnel Command via Personnel Support Detachment, Bangor the administrative separation of ETSA R_ (Applicant) for review. General courts-martial convening authority review is complete.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031211 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under 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).

Normally, to permit relief a procedural impropriety or inequity must have occurred during the discharge process. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general (under honorable conditions) characterization of service 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. In the Applicant’s case the record clearly documented the pattern of misconduct for which he was separated. 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. Separation under these conditions generally results in a service characterization of under other than honorable conditions. Relief denied.

 The Applicant contends that his discharge was inappropriately characterized. MILPERSMAN Article 3630600 defines the misconduct for which the Applicant was discharged, “pattern of misconduct” as two or more punishments under the UCMJ within the current enlistment. The record clearly documents t he Applicant’s two nonjudicial punishments for violations of the UCMJ, Article 86 (unauthorized absence), Article 92 (failure to obey and order), and Article 113 (misbehavior of a sentinel) during his single enlistment. Furthermore, members separated by reason of misconduct due to a pattern of misconduct normall y receive an under other than honorable conditions characterization of service. Characterization of service as honorable is not authorized unless the member's record is so meritorious that any other characterization would be clearly inappropriate. Based on a review of the Applicant’s record, t he Board could discern no impropriety or inequity and therefore considered the discharge proper and equitable. Relief denied.

The Applicant also requested that his characterization of service be changed to entry level or uncharacterized. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation. The Applicant served over thirty months and was not notified of his intended separation within the first 180 days, which makes him ineligible for an uncharacterized or entry-level characterization of service. The Applicant’s issue is without merit, as such does not warrant relief. Relief denied.

The Applicant requested that his narrative reason for separation be changed to “Medical Discharge Honorable”. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant was discharged in accordance with MILPERSMAN, Article 1910-140 (misconduct due to a pattern of misconduct) following his retention warning violation and second nonjudicial punishment. For the edification of the Applicant, the Naval Military Personnel Manual does not permit “Medical Discharge Honorable” as an authorized narrative reason for separation. “Pattern of Misconduct” is the appropriate DD-214, block 28 entry as directed by the Naval Military Personnel Manual. No other narrative reason for separation could more clearly describe why the Applicant was discharged. To change the narrative reason for separation would be inappropriate. Relief denied.

The Applicant contends that his sleeping disorder impacted his ability to serve. The Applicant bears the burden of presenting substantial and credible evidence to support his issues. There is no evidence in the record, nor has the Applicant produced evidence, to support his contention. To the contrary, the record documents that the Applicant was provided with a continuous airways pressure machine (CPAP) , as treatment for his sleep apnea. By the Applicant’s own admission he chose not to utilize the CPAP on a regular basis. When reviewing a discharge, the NDRB does consider the medical condition of the Applicant and how that might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The misconduct that eventually resulted in his discharge occurred subsequent to the Applicant being provided with the machine to treat his sleep apnea. Once the Applicant was provided with the machine it was his responsibility to utilize this resource. His continued tardiness and failure to properly stand his assigned watches can no longer be attributed to circumstances beyond his control, i.e. sleep apnea. Relief denied.

The Applicant contends that his command allowed his shipmates to “straighten me out” by the use of “ridicule, racism, fascism, sabotage and harassment”. The NDRB takes these allegations seriously. Nevertheless, it remains t he Applicant’s responsibility to substantiate his allegations through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his issue. Furthermore, t he record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or any other member of his chain of command. In the absence of documented evidence, the Board considered his discharge proper and equitable. 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 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. The Applicant did not submit post service documentation for the board’s consideration.

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 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 each violation of the UCMJ, Article 92 and 113.

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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