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NAVY | DRB | 2006_Navy | ND0600106
Original file (ND0600106.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND06-00106

Applicant’s Request
The application for discharge review was received on 20051020. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests 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 20060802. 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 and reason for discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application and attached document/letter:

“The discharge should be medical see letter A.”

“It happen about the seven week during boot camp, we were doing sit ups Forever, when I felt something pulling or breaking, but overcoming the pain I kept on going so an overweight soldier next to me could get a break and stop Crying.

When finally the order to stand tall came, I tried to get up just to discover that my Lower extremities were not responding from the mid back down. I starting panicking I never had experience physical problems in my life much less total breakdown Several company commanders approach and, started yelling at me; but the body just would not respond, My CC which promptly realized that something abnormal happen, until that day I was one of this favorite recruits, since for me boot camp was half as hard as my experience working three jobs and, being able to achieve the work of several man with Pride and good leadership, which gave use, to that day, all the stars, a company could win.

I ended in the hospital for several days or weeks, a dr. came and offer me a medical discharge and I told him no. I wanted to serve and that pain should go away. And requested for him to put in alert of the new problem to my superiors and he ordered to keep working in under load of 20 pounds, since I was going to be a store keeper we thought a lot of computer work would pass me thru my service years.

Those orders were not follow not in San Diego, not in Norfolk, not in the med cruise. In which hospitals they were ordered again and again, just to be ignore, with the conflict on the go, it happened what I feared the most, they thought I was malingering and with punishment I will get better, so they double the workload and my pain with it, to what it turn to months of exuberating and endless pain. I became addicted to it and fell in a roller coaster high in pain down in pain killer pills, and the battle between tradition and medical rights, circus for the shipmates to see me bending down in pain, since a couldt stand tall, cleaning thing at my bendig reach. When I finally I gor the a hospital the order was given to fly to northfolk were I met my lawer, which advised me that if the judge were to find that I was hurt or in pain they would keep me in for twenty years in those conditions. But in the contrary I could fight for honorable discharge from the out side. I don’t think I was in my right frame of mind when the decision was taken for which I request for a review, I won’t ask for a Presidential pardon because I believe is my navy the one should request one.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Applicant’s DD Form 215 (2)
Enlistment/Reenlistment Contract (3 pgs)
Signature Verification page from National Personnel Records Center, dtd June 22, 2005
Medical Related Documents (24 pgs)
Letter from National Personnel Record Center dtd September 19, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900419 – 19900423               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900424             Date of Discharge: 19930201

 Length of Service (years, months, days):

         Active: 02 09 07 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: 382 days
         Confinement:              15 days

 Age at Entry: 23

 Years Contracted: 4

Education Level: 16                                 AFQT: 52

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.
* Not Available


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
BAD CONDUCT/Convicted by special court martial, authority: NAVMILPERSMAN, Article 3640420.
Chronological Listing of Significant Service Events :

900426:  Retention Warning: Applicant notified of deficiency "(You are being retained in the Naval Service in spite of your defective enlistment and induction due to fraudulent entry into the Naval service as evidenced by your failure to disclose your preservice involvement with civil authorities consisting of the following: August 1989 - Parking ticket - Los Angeles CA --$12.00, August 1989 - Parking ticket - Los Angeles CA --$12.00") notified of corrective actions.

901226:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 900919 having been an unauthorized absentee since 0001, 900919 from USS MILWAUKEE.

910405:  Report of Return of Deserter. Applicant surrendered to military authorities on 910401 (0915) at Mexico City, MX. Returned to military control 910401, (0915) at deserter information point Washington DC.
910812:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 910511 having been an unauthorized absentee since 0700, 910411 from USS MILWAUKEE (AOR-2).

910916:  Pre trial confinement from 910916-911012 [17 days], credit granted toward service of confinement.

910918:  Report of Return of Deserter. Applicant apprehended by civil authorities on 910916 (0058) at Albuquerque, NM. Returned to military control 910916 (0111) at deserter information point, Washington, DC.

 911215:  Applicant attempted suicide while USS MILWAWKEE was in Turkey. Applicant was medivaced to Naval Hospital Portsmouth, VA. Applicant was medically evaluated. Diagnosis: Occupational problem, personality disorder NOS with avoidant and passive aggressive traits, chronic low back pain. Discharge note recommended administrative separation for "unsuitability per MILPERSMAN 3620225 [personality disorder]." (Portions excerpted from medical records provided by the Applicant.)

920525:  Special Court Martial
         Charge I: violation of the UCMJ, Article 86, (2 specifications).
         Specification 1: Unauthorized absence 900819 - 910401, [225 days/A.] Plea: Guilty. Finding: Guilty.
         Specification 2: Unauthorized absence 910411 – 910916, [158 days/A.] Plea: Guilty. Finding: Guilty.
         Sentence: Confinement for 60 days, forfeiture of $523.00 pay per month for 2 months, Bad Conduct discharge.
         CA 920525: The sentence approved and, except for that part of the sentence extending to a bad conduct discharge, will be executed. The execution of that part of the sentence extending to 60 days confinement and forfeiture of pay of $523.00 pay per month for two months is suspended for a period of 12 months from the date of trial at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
        
920831:  NMCCMR: The findings of guilty and sentence, as approved on review, are affirmed.
930113:  Appellate review complete.
930201:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930201 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and B). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C). The Board presumed regularity in the conduct of governmental affairs (D).

In the Applicant’s case, he asserts that he should have received a medical discharge instead of the type of discharge he received. 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 NDRB sees no connection between the Applicant’s misconduct and his medical condition. The Applicant’s misconduct began before his personality disorder was diagnosed and he was already pending disciplinary action for that misconduct. Even if he had a recommendation for medical discharge prior to his misconduct, recommendations for medical discharge do not suspend disciplinary proceedings. There is no evidence in the record to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions. The NDRB considered the Applicant’s discharge proper and equitable. Relief denied.

The Applicant also requested that the character of his service be upgraded to general under honorable conditions. In response to the Applicant’s issue, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. 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 additional evidence related to this 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 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURTMARTIAL.

 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, Article 86, (unauthorized absence for more than 30 days).

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs

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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