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

 ex-RP1, USN
Docket No. ND99-00325

Applicant’s Request

The application for discharge review, received 981223, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed a private representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990525.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  The Social Security doctor in Hollow Springs classified (applicant) as disabled.  He was suffering from Hodgkins Disease, and taking strong medication as prescribed.

2.  In 1995 (applicant) went to the Mental Health Clinic in Joshua Tree, CA and was diagnosed as mentally and physically disabled.

3.  (Applicant) has been unable to work since his discharge.  His bones are very fragile, and has suffered from a broken leg, hand, wrist and fingers trying to work.

4.  (Applicant) is presently in critical condition in Marptte Medical Center in Memphis, Tenn.  He was shopping in a Mini-Mart in Ashland, Mississippi when a robber entered with a gun.  (Applicant) tried to help a customer and was shot.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Statement on applicant's condition
Copy of applicant's marriage license

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		810928 - 840913	HON
		   USN 		841226 - 921217	HON
	Inactive:  USNR (DEP)	810825 - 810827	COG
                  USNR (DEP)	841127 - 841225	COG

Period of Service Under Review:

Date of Enlistment:  921218		Date of Discharge:  950407

Length of Service (years, months, days):

	Active:    02  03  20
	Inactive:  None

Age at Entry:  38			Years Contracted:  6

Education Level:  16			AFQT:  83

Highest Rate:  RP1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, KLM, SASM, CAR, NUC, AFEM, OSR (3), ESWSI, HSM

Days of Unauthorized Absence:  55 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930521:	Applicant to unauthorized absence 0600, 93May21.

930621:	Applicant declared a deserter.

930628:	Applicant apprehended and charged by civil authorities. Assault with a deadly weapon (battery).

930629:	Applicant returned to military control, 0635, 93Jun29 (38 days/apprehended).

930720:	Applicant declared a deserter, having been unauthorized absentee since 0730, 19Jul93.

930809:	Report of return of deserter.  Apprehended by civil authorities in Palm Springs, CA at 0300, 93Aug06.  Delivered to military control 0300, 93Aug06 (17 days/apprehended).

931110:	Mental Health Department:  Inquiry Board into Mental Capacity/Mental Responsibility:  Summary and Conclusions:  (a) At the time of the alleged criminal conduct, the accused had a mental disease. (b) The clinical psychiatric diagnoses are:  Axis I:  Major depression.  Axis III:  Nodular Lymphocyte Predominant Hodgkin's Disease.  (c)  At the time of the alleged criminal conduct, the accused was not able to appreciate the nature and quality, or wrongfulness of is conduct.  (d)  The accused possesses sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in his defense.

940123:	The San Bernadino Sheriff’s department reported that the applicant forced his spouse at gun point to take him to S____ market so she could cash a $30.00 check and give him the money.  Once inside the market the victim was able to get away from the suspect and exit the back door.  The police turned the applicant back over to military control.

940209:	NAVDRUGLAB San Diego, CA, reported applicant’s urine sample, received 940131, tested positive for cocaine.
  
940509:	Inquiry Board into Mental Capacity/Mental Responsibility:  Summary and Conclusions:  a.  At the time of the alleged criminal conduct, the accused did have a mental defect.  He was experiencing an acute intoxication from cocaine.  b.  The clinical psychiatric diagnoses as determined in accordance with reference (b) for the accused are:  Axis I:  Cocaine dependence, Alcohol Dependence.  Axis II:  Narcissistic Personality Disorder, Axis III: Nodular Lymphocyte Predominant Hodgkin's Disease.  c.  Although psychologically and physically affected by the stimulant at the time of the alleged criminal conduct, the accused was able to appreciate the nature and quality or wrongfulness of his conduct.  d.  The accused has sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in his defense.

941003:	Naval Medical Center San Diego, Hematology/Oncology:  Summary of applicant's oncologic history:  ...first problem with Hodgkin's disease in October 1970 at age 16 when lymph node biopsy from his neck showed this diagnosis, treated with radiation therapy.  Second lymph node appeared in the treated area approximately 1 year later, treated with 3 cycles of combination chemotherapy.  In Jan 7 and May 85 he had lymph nodes biopsical from his left arm and his left groin which were non-diagnostic but suspicious for early relapse.  Came to my attention in December 1992 when a lymph node biopsied from the right neck showed Hodgkin's Disease once again.  A complete reevaluation then showed no definite tumor elsewhere, elected to give no treatment and observe.  July 1994 patient complaining of migratory pains in his extremities, a repeat CT scan of the abdomen was done, showing increased size of lymph nodes at several sites below the diaphragm.  After some logistic difficulties a biopsy was performed 9/14/94 showing recurrent modular lymphocyte predominant Hodgkin's disease.....

941013:	Fitness for confinement:  Applicant diagnosed with widespread lymphoma and needs chemotherapy immediately.  In my opinion the brig is not suitable place for a patient in an immune compromised condition.  Therefore, I find applicant unfit for confinement.

941105:	Applicant request refill of percocet for post chemo pain.  Applicant with widespread Hodgkin's Disease.

941122:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of serious offenses.

941202:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

941205:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed drug abuse and serious offenses, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950214:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.  Commanding officer’s comments (verbatim):  Involvement with civilian authorities:  Applicant has been arrested for conspiracy to steal, assault, carrying a concealed weapon, kidnapping, robbery and resisting arrest.  Summary of military offenses:  Applicant was pending a General courts-martial for the offenses listed above and for those offenses indicated in the Notice of Board Procedures, specifically, possession of drug paraphernalia, purchasing and using cocaine, and unauthorized absence.  Because of his medical condition (Hodgkin's Disease), charges were withdrawn and applicant was referred to an Administrative Board.  There has been no conviction or finding of guilty a(t) Captain's Mast.  I recommend that RP1 (applicant) be separated under other than honorable conditions for drug abuse and commission of serious offenses.  Enclosure (3) reveals that RP1 (applicant) continues to undermine the rules and regulations of the United States Naval Service and the Civilian Community.  He was arrested by civilian authority for public intoxication and resisting arrest.

950314:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950407 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).

The applicant’s next of kin issue 1 states “he was suffering from Hodgkin’s disease and taking strong medication as prescribed” and “was diagnosed as mentally and physically disabled.”   A medical diagnosis, on active duty or during post-service, and whether proper or improper, is not an issue upon which this Board can grant relief.  When reviewing a discharge, the Board does consider the extent to which a medical problem, diagnosed or undiagnosed while on active duty, might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The Board does not consider the circumstances surrounding the applicant’s diagnosis or any medical treatment given to the applicant to be of sufficient nature to exculpate the applicant from his misconduct of record.  Relief is not warranted.

The Board reviews the propriety (did the USN follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge.  Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general).  In the applicant’s case, there was absolute propriety and equity used in the determination of the applicant’s discharge.  The applicant has not provided any documentation of post service good character and conduct.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

[FOR USE WITH COMMISSION OF A SERIOUS OFFENSE OR CIVILIAN CONVICTION AS APPROPRIATE]

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023