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

FOR OFFICIAL USE ONLY

   ex-GSMFN, USN
Docket No. ND05-00190

Applicant’s Request

The application for discharge review was received on 20041109.  The Applicant requests the characterization of service received at the time of discharge changed to general under honorable conditions and the reason for the discharge changed to medical.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to granting a personal appearance hearing.  The Applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  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.  WHY AN UPGRADE OR CHANGE IS REQUESTED AND JUSTIFICATION FOR THE REQUEST: (Continue on Item 14)

Military Member GSMFN C_ (Applicant) suffered an injury on 26 APR 02 (cerebrovascular accident/injury) while on Full Time Active Duty in Full Dress Uniform at Great Lakes Naval Base.  This injury was so severe and debilitating it required GSMFN C_ (Applicant) be life-flighted from Great Lakes Naval Hospital to Froedtert Memorial Hospital in Milwaukee, Wisconsin.  Prior to the Order being issued for GSMFN C_ (Applicant) to be life-flighted, the Command at Great Lakes Naval Base nearly delivered GSMFN C_ (Applicant)’s Death Certificate to his Military Spouse Member, S_ C. (P_) C_, at Great Lakes Naval Base, prior to any medical pronouncement of death by a certified physician.

In fact, GSMFN C_ (Applicant) can produce three (3) Military Members as Witnesses to substantiate that the Command at Great Lakes Naval Base was attempting to locate Military Spouse Member, S_ C. (P_) C_, with the aforementioned Death Certificate documentation prior to any medical declaration of the actual Death of Military Member GSMFN C_ (Applicant).

In Fact, GSMFN C_ (Applicant), did NOT die and was never medically pronounced dead.

The attached medical evidence substantiates that Military Member GSMFN C_ (Applicant) sustained his injury, received treatment in NICU, SICU, at Froedtert Memorial Hospital in Milwaukee, Wisconsin; received some minimal follow-up after care treatment at Curative Rehabilitation Services also located in Milwaukee, WI; and, additionally received care at the Naval Hospital located at Great Lakes Naval Base in Illinois.

[See Exhibit 1]

Effective 19 JUL 02 GSMFN C_ (Applicant) was found Fit for Full Duty and returned to Full Duty Active Service.

[See Exhibit 2].

Effective 10 JUN 02, 13 JUN 02, one of the treating physicians, J_ C_, Ph.D., Clinical Neuropsychologist (at Curative Rehabilitative Services in Milwaukee, WI) of GSMFN C_ (Applicant) evaluated and reported his written recommendation (the following):

“Therefore, it is recommended that he (GSMFN C_ ) work with a vocational counselor to assist in his return to work.  A gradual reintroduction to the workplace is recommended to allow for accommodations as necessary.  Initially, he will also require supervision and monitoring to ensure adequate job performance.  As he may not be aware of or may not acknowledge difficulties, external assessment of his work will be necessary.  He should continue to demonstrate improvements in the above areas with time and retraining.  However, it is possible that a return to his job may not be successful despite accommodations.  If this occurs, consideration of alternative work is warranted due the changes noted above.  Although no significant psychopathology is evident at this time, therapy may be beneficial in addressing adjustment issues as well as ongoing family stressors.  Supportive counseling may also be of benefit to the patient’s family.”

[See Exhibit 3].

NONE of these recommendations happened under the Command of Commander H_ of the USS Arleigh Burke DDG51 from 15SEPT02 until MAR 04.

On 09 MAY 02 Dr. C_ H_-B_, treating physician and Neurosurgeon to GSMFN C_ (Applicant) discharged patient GSMFN C_ (Applicant) with the following instructions:

“The patient is to have a repeat convential angiogram and repeat MRI scan of the brain in 2 weeks after the patient’s discharge, which should be arranged by the physician designated by the U.S.  Navy and who will further follow the patient clinically and take appropriate action.

[See Exhibit 4].

From 15 SEPT02 until MAR04 under the Command of Commander H_ of the USS Arleigh Burke DDG51, these instructions per GSMFN C_ (Applicant)’s treating Neurosurgeon were not followed.

GSMFN C_ (Applicant) was supposed to have been transferred from Froedtert Memorial Hospital to Bethesda Naval Hospital and be Medically Discharged from the Department of the Navy.

This did not happen.

Effective 19 JUL 02 GSMFN C_ (Applicant) was found Fit for Full Duty and returned to Full Duty Active Service.

[See Exhibit  2].

Effective 15 SEPT 02 GSMFN C_ (Applicant) left from his Service School Command in Great Lakes, IL, and reported to his new Command the USS Arleigh Burke DDG51 in Norfolk, VA, per his Official Orders.

[See Exhibit 5].

GSMFN C_ (Applicant) immediately notified his Command, including Commander H_, of his pre-existing injury of 26 APR02.  GSMFN C_ (Applicant) had no knowledge as to the whereabouts of his medical documentation from either Froedtert Memorial Hospital or Curative Rehabilitation Services in Milwaukee, WI, and further stipulates that he had been informed that such documentation would be forwarded to his new Command in Norfolk, VA.

Military Member GSMFN C_ (Applicant) received no support with respect to his health and welfare from his Command, in particular, from Commanding Officer Harris, who blatantly and personally denied any such claims from GSMFN C (Applicant) about any pre-existing injury and continued, consistent and persist claims of after-care symptoms of migraine headaches, etc., to such extent that Commander H_ personally stated GSMFN C_ (Applicant) was “lying” about any such pre-existing injury and that GSMFN C_ (Applicant)’s symptoms were “psychosomatic” from SEPT 02 until MAR04 when GSMFN C_ (Applicant)’s military spouse member, S_ C. (P_) C_, contacted Congresswoman J_ A_ D_ (VA) regarding the neglect of GSMFN C_ (Applicant)’s health and welfare.

[See Exhibit 6].

Upon this statement of truth and fact, GSMFN/PFC C_ (Applicant) and S_ C. (P_) C_ NOW MOVES AND CLAIMS THE FOLLOWING:

First and foremost are the issues of the Mast Hearing and the basic foundation of the Discharge of GSMFN C_ (Applicant).  GSMFN C_ (Applicant) was Absent Without Leave from the USS Arleigh Burke DDG51 only after he had formally and officially exhausted all forms of communication requesting Emergency Leave to return home to care for his spouse who was in need of emergency medical assistance and had no immediate family in the area.  Military spouse member, S_ C. (P_) C_ has two (2) major chronic illnesses and was in need of emergency medical attention and support due to lack of dependent daily medications.  This was not the first time this Command and, in particular, Commander H_, neglected to provide support or direction for family support to GSMFN C_ (Applicant) in an Emergency Medical situation.

Military Spouse Member, S_ C. (P_) C_ had been denied access to prescription medication(s) that she requires on a daily basis for medication management and dependent healthcare.  Under the Command of Commander H_, Military Spouse Member, S_ C. (P_) C_, was denied healthcare benefits and family support services for her direct health and welfare that caused incorrect medications to be administered and Military Spouse Member, S_ C. (P_) C_ to attempt suicide.

[See Exhibit 7].

The initial onset of Commander H_ knowingly and willfully neglecting the health and welfare of GSMFN C_ (Applicant) and Military Spouse Member, S_ C. (P_) C_, began directly upon the arrival of GSMFN C_ (Applicant) and his wife to Norfolk, VA.  In short; ladies and gentlemen:

(1)  GSMFN C_ (Applicant) and wife upon arrival to Norfolk, VA, were told there was no housing available and were mandated to stay in a hotel for four (4) weeks; when that avenue was exhausted, a local community church offered assistance with housing at another hotel for an additional two (2) weeks before any Navy housing was available at all;

(2)  GSMFN C_ (Applicant) and wife moved into the available Navy housing where Military Spouse Member, S_ C. (P_) C_, (hereinafter referred to as “S_”), was electrocuted from faulty wiring.  Military Spouse Member, S_, called “9-1-1” and notified GSMFN C_ (Applicant)’s Command of this incident.  Because the Command members present were not unable to state whether or not GSMFN C_ (Applicant) would be allowed to accompany Military Spouse Member, S_, to the hospital; S_ did not believe it would be safe, given her chronic illnesses and dependent medical conditions to receive medical care without her husband present for her to receive medical care and, therefore, refused medical treatment;

(3)  The delayed housing arrangements perpetuated and complicated the facilitation of appropriate medical care Military Spouse Member, S_, needed to secure upon arriving to a new duty station.  These events coupled with Military Spouse Member, S_, depleting the supply of medications prescribed to her prior to leaving GSMFN C_ (Applicant)’s last duty station inadvertently led to a confrontation with a maintenance employee at their Navy housing apartment complex.  Military Spouse Member, S_, was physically assaulted and beaten while GSMFN C_ (Applicant) was on Duty.  Military Spouse Member, S_ did not retaliate physically or violently in this confrontation, yet was still charged with Assault.  GSMFN C_ (Applicant)’s Command suggested Military Member C_ (Applicant) and his wife move and find different housing.  GSMFN C_ (Applicant) and his wife complied and moved from Virginia Beach to Norfolk, VA;

(4)  JAN 03 GSMFN C_ (Applicant) deployed for six months onboard the USS Arleigh Burke DDG51;

(5)  The day after GSMFN C_ (Applicant) deployed Military Spouse Member, S_, was arrested for Failure to Appear charges on an outstanding Summons from the Commonwealth of Virginia for an Assault charge from the confrontation with the Maintenance Employee from the prior Navy housing; and, was incarcerated for almost the entire duration of GSMFN C_ (Applicant)’s sixth month deployment without any contact or support from GSMFN C_ (Applicant)’s Command;

(6)  Under the Command of Commander H_, Military Spouse Member, S_, suffered the loss of Federal Social Security Disability Benefits of 11 Months (this was NOT due to incarceration)-due to the neglect and wrongful intention of Commander H_’s failure to provide family support, health and welfare support and benefits during the transition of GSMFN C_ (Applicant) and his wife to a new duty station; furthermore, Commander H_ directly caused a breech of contract of an IEP (Individualized Employment Plan) between Military Spouse Member, S_ C. (P_) (W_) C_ and the State of Ohio, the State of Florida, and the Commonwealth of Virginia, by knowingly and willfully neglecting to provide family support, health and welfare support and benefits so that Military Spouse Member, S_, could maintain necessary medication management, physician appointments, and other necessary daily facilities as specifically outlined in accordance with the above-referenced binding and legally obligated Contractual IEP Contracts to maintain a regiment of Vocational Rehabilitation, to Remain in Educational Rehabilitation. i.e. public-funded College or comparable University on a Full-Time, Regular Basis with a Goal of Full-Time Employment, upon Completion of a Bachelor’s Degree.

[See Exhibits 9, 10, 11].

GSMFN C_ (Applicant) was denied multiple requests for Emergency Leave from his Command and, in particular, Commander H_, to provide support and assistance in the form of Emergency Medical care for his Military Spouse Member, S_ C. (P_) C_.

[See Exhibit 8].

In Fact, Commander H_, Ordered all forms of Communication be severed, during a time of War, between GSMFN C_ (Applicant) and his Military Spouse Member, S_.

Military Spouse Member, S_ C. (P_) C_, was also administered INCORRECT MEDICATIONS and almost successfully committed suicide by being hanged.  GSMFN C_ (Applicant)’s Command, in particular, Commander H_, had Ordered all Communications be stopped.

Nonetheless, GSMFN C_ (Applicant) willfully and on his own accord returned to the USS Arleigh Burke DDG5 1 Quarterdeck without force or restraint.  This act is Evident of Fact that GSMFN C_ (Applicant) is Not Guilty of Misconduct.  In Fact, Military Spouse Member, S_, told Military Members J_ and K_ that GSMFN C_ (Applicant) would be returning to the Command of the USS Arleigh Burke DDG51, although no specific date was mentioned.

GSMFN C_ (Applicant) was mandated by the Misconduct of his Command and, in particular, Commanding Officer H_, to make a choice under Duress.

GSMFN C_ (Applicant) and Military Spouse Member, S_, have had no “Command issues” of any kind whatsoever with respect to such detail under the Command of Commanders B_  and Commander J_  while stationed in Mayport, FL.

All incidents in question beginning with GSMFN C_ (Applicant)’s initial cerbrovascular injury on 02 APR 26 at Sea Service Command School have “snowballed” from the Command in Great Lakes when Chief Smith falsely accused GSMFN C_ (Applicant) of “being on drugs” to Commander H_ in Norfolk, VA.  Not one single officer or military member with the exception of Chief D_ has taken GSMFN C_ (Applicant)’s injury with serious magnitude and, in fact, the conception appears to be one of disturbance that GSMFN C_ (Applicant) did not, in fact, demise.  Commander H_ did; however, knowingly and willfully commit Discrimination against a Germ an-American National Military Member, GSMFN C_ (Applicant), and a Disabled American Military Spouse Member, S_ C. (P_) C_, with wrongful intention to deprive said members of health, welfare and family support services, legal representation vocational rehabilitation, educational services, and Federal wages and compensation.

GSMFN C_ (Applicant) knew the consequences were serious and that hospitalization and even long-term medical care and treatment for his wife would be required, if Military Member GSMFN C_ (Applicant) did not take the time to intervene and assist his wife with her Emergency Medical needs.

GSMFN C_ (Applicant) had no alternative but to make an assessment, adapt, adjust and make an executive decision in a timely fashion despite the negligence, misconduct, disobedience and intentional unwillingness to support his own health and welfare and even that of his family from his Command and his Commanding Officer.

GSMFN C_ (Applicant), against his own better judgment, acted against Article 86, and left his Command to care for the Emergency Medical needs of his wife, military spouse member, S_ C. (P_) C_.

GSMFN C_ (Applicant) then without force or restraint willfully and upon his own accord returned to his Command, the USS Arleigh Burke DDG51 knowing that he would be held accountable for his actions.

GSMFN C_ (Applicant) returned to the USS Arleigh Burke DDG51 and was immediately placed on Restriction.  GSMFN C_ knowing he would be faced with a Mast Hearing, immediately orally and by written communication respectfully requested legal representation.

Commander H_ denied GSMFN C_ legal representation at his Mast Hearing.

In fact, Commander H_ interrupted GSMFN C_ (Applicant) in his speaking and did not allot him the opportunity to speak on his own behalf.  Commander H_ did not inform GSMFN C_ (Applicant) he was to be discharged from his military service.  Commander H_ did not inform GSMFN C_ upon what basis the discharge was founded.  Commander H_ was dressed in civilian clothing and held this Mast at Midnight onboard the USS Arleigh Burke DDG51 the evening prior to a Change of Command Ceremony while Commander H_’s wife waited on the Mess Deck after TAPS.

Commander H_ provided no support for Vocational Rehabilitation or Retraining to GSMFN C_ (Applicant), or any support for GSMFN C_ (Applicant) with respect to his basic health and welfare.

Due to the negligence, misconduct, disobedience, endangerment of military property and intentional disrespect of Military Member GSMFN C_ (Applicant) from Commander H_, it was the single and specific idea (based upon the medical documentation and advice) that military spouse member, S_ C. (P_) C_, recommended and suggested to GSMFN C_ (Applicant) that he make a vocational career change and that GSMFN C_ (Applicant) put in for an intramilitary transfer to the United States Marine Corps.

Effective 19 JUL 02 GSMFN C_ (Applicant) was Found Fit for Full Duty and returned to Full Duty Active Service.

[See Exhibit 2].

GSMFN C_ (Applicant) did just that and he had no symptoms from his pre-existing injury and no Command issues.

All follow-up medical examinations prior to discharge and from the first Congressional Inquiry found GSMFN C_ (Applicant) with no evidence of a pre-existing injury and Fit for Full Duty.

GSMFN C_ (Applicant) and Military Spouse Member, S_ C. (P_) C_ MOVES AND CHARGES THAT COMMANDER H_ OF THE USS ARLEIGH BURKE DDG 51 DID WILLFULLY AND KNOWINGLY COMMIT ACTS AGAINST THE FOLLOWING ARTICLES UNDER-

“Military Law: Under the Uniform Code of Military Justice.” (Aycock and Wurful, 1955)

1)  ARTICLE 99-Misbehavior Before the Enemy:
a.  The offense of misbehavior before the enemy is committed when any member of the Armed Forces who before the enemy or in the presence of the enemy;
“(3) through disobedience, neglect or intentional misconduct endangers the safety of any such command, unit, place or military property; or….”

Commander H_ during a time of War endangered his entire Command and Crew by neglecting to provide vocational rehabilitation, retraining, health and welfare to GSMFN C_ (Applicant) and to his military spouse member, S_ C. (P_) C_.  Commander H_ endangered the safety of military spouse member S_ C. (P_) C_ by Ordering all means of Communication be severed between GSMFN C_ (Applicant) and his spouse during a time of war to such extent that military spouse member nearly committed suicide by being hanged.

Commander H_ neglected and endangered the Crew onboard the USS Arleigh Burke DDG51 by failing to provide vocational rehabilitation and/or retraining, health, welfare and family support services to Military Member GSMFN C_ (Applicant) during a time of War and negligently defying the direct advice of Military Member GSMFN C_ (Applicant)’s Treating Physicians and mandating that GSMFN C_ (Applicant) return to his regular Rate of a Gas Systems Mechanical Engineer without said services of the aforementioned support.

Commander H_ endangered the Crew onboard the USS Arleigh Burke DDG51 by intentionally and willfully perpetuating a Hostile Working Environment that directly endangered the life of Servicemember GSMFNC_ (Applicant) during a time of War and negligently defying the direct advice of Military Member GSMFN C_’s (Applicant) Treating Physicians and mandating that GSMFN C_ (Applicant) maintain his position in his regular Rate of a Gas Systems Mechanical Engineer without the support and aforementioned vocational services that should have been provided to Servicemember GSMFN C_ (Applicant) by the USN from SEPT 02 until MAR 04 under the direct Command of Commander Harris onboard USS Arliegh Burke DDG51.

GSMFN C_ (Applicant) was NOT SAFE and in a PROTECTED and SUPPORTIVE WORKING ENVIORNMRNT until Service Member C_ (Applicant) became employed with the United States Marine Corps and changed his vocation.  Service Member C_ (Applicant) was ONLY PROTECTED and SUPPORTED and in a SAFE WORKING ENVIRONMENT while operating as PFC C_ (Applicant) within the United States Marine Corps. 

Commander H_ neglected, endangered and intentionally jeopardized the safety of Military Spouse Member, S_ C. (P_) C_, by negligently failing to provide health, welfare and family support services to a Military Spouse Member that directly caused the interruption of Federal SSDI Benefits and a Direct Breach of State IEP Vocational Rehabilitation Contract(s) while she was incarcerated at the Virginia Beach Correctional Facility.

2)  ARTICLE 108-Military Property of the United States-Loss, Damage, Destruction, or Wrongful Disposition:
a.  Under this Article the damaging of military property of the United States through neglect is a lesser-included offense in a charge of willfully damaging such property by force.

Commander H_ willfully and knowingly continued to neglect, damage and wrongfully disposition GSMFN C_ (Applicant), United States Military Property, by force because Commander H_ mandated and required GSMFN C_ (Applicant) to work in his regular rate and vocation as a Gas Systems Mechanical Engineer without being provided any support and/or assistance after the fact that GSMFN C_ (Applicant) had formally and officially notified his Command, and Commander H_, specifically, of his pre-existing injury and subsequent after care symptoms that required medical attention and treatment.

3)  ARTICLE 122-Robbery.

a.  The very “touchstone” of robbery is that it constitutes an offense against the person.  Accordingly, a specification which alleges the accused did “by means of putting fear, steal” from the victim is insufficient inasmuch as it fails to allege that the accused stole from the person or in the presence of the victim.

In a matter of less than a few minutes at GSMFN C_ (Applicant) ‘s Mast Hearing, Commander H_ robbed the following:
i)  Federal Military Wages and Compensation;
ii) Federal Military Health and Welfare Benefits;
iii) Federal Military Vocational and Educational Benefits;
iv) Civil Liberty-Right to Legal Representation
v) Civil Liberty-Freedom of Speech

Commander H_ intentionally and willfully acted with Misconduct in diminishing the capacity of GSMFN C_ (Applicant) to act appropriately and accordingly on his own behalf and provide a defense at his Mast Hearing.  GSMFN C_ (Applicant) was denied the opportunity to introduce medical evidence in support of his injury of26 APR 02.  Commander H_ personally denied GSMFN C_ (Applicant) JAG representation.  GSMFN C_ (Applicant) did not even have Ship’s Counsel, Ensign D_, present on his behalf at his Mast Hearing.  Commander H_ did not afford any legal representation whatsoever to GSMFN C_ (Applicant).  GSMFN C_ (Applicant), upon his request, has provided enough Active Duty Service to be afforded legal counsel at any Military Hearing.

Commander H_ wrongfully appropriated and deprived Military Spouse Member, S_ C. (P_) C_, of approximately 19 months of vocational rehabilitation and educational benefits, 11 months of Federal SSDI Benefits, military health, welfare and family support services including, but not limited to, one attempted suicide while incarcerated at the Virginia Beach Correctional Facility and another attempted suicide on 04 APR 23.

(The P_ Family has lost two family members to suicide.  One on November 17, 1984, and just recently on August 26, 2004.) I believe U.S.  Air Force Military Member, J_ P_ came home to Ohio on leave for the funeral of G_ W_ P_.  Both family members shot and killed themselves with a handgun.  J_ P_ is now on his 25th year in the U.S.  Air Force.

[See Exhibit 12].

4)  ARTICLE 121-Larceny and Wrongful Appropriation:
a.  “…..The difference between larceny and wrongful appropriation under Article 121 is that the former requires that the wrongful taking, obtaining, or withholding must be with intent to deprive, defraud, or appropriate permanently; whereas the latter is concerned with an intent temporarily to do these things.  A person may be guilty of larceny even though he intends to return the property ultimately, if the execution of that intent depends on future condition or contingency, which is not likely to happen within a reasonably limited and definite period of time.  The time of return is not uncertain or indefinite to such a degree as to justify a demand that wrongful appropriation be excluded from consideration in a case in which an accused pawns property of another without authority intending to redeem it upon receipt of his pay and allowances at the end of the month or when his wife receives her allotment check…..”

Commander H_ committed larceny and wrongful appropriation by withholding and intentionally depriving GSMFN C_ (Applicant) of his Travel Pay upon his Detachment from the USS Arleigh Burke DDG5I.

Commander H_ separated GSMFN C_ (Applicant) and issued Separation Travel Orders effective 04 APR 25.  GSMFN C_ (Applicant) should have been allowed to leave per issuance of these Travel Orders.

[See Exhibit 13].

In Fact, GSMFN C_ (Applicant) was detained and not allowed to leave the USS Arleigh Burke DDG5I until 04 APR 30.

GSMFN C_ (Applicant) was knowingly and intentionally deprived of Command support even though his Command had been notified of his wife's hospitalization and attempted suicide and that she had been placed on a respirator for four (4) days.
GSMFN C_ (Applicant) was not allowed to leave the Ship due, in part, because his Command stated that 1T2 C_ S_ G_ (stationed at Dahlgren, VA), who notified GSMFN C_ (Applicant)’s Command, had only telephoned the report of the incident and; therefore, the Command could not provide support to GSMFN C_ (Applicant) because IT2 G_ was negligent in his Duty to report the incident by means of an AmCross message and; thus, the Arleigh Burke DDG5I Command could not release GSMFN C_ (Applicant) from the Ship to care for his wife.

GSMFN C_ (Applicant) did not receive Travel Pay upon his Detachment from his assigned Duty to the USS Arleigh Burke DDG5I.

Commander H_ purposefully and intentionally withheld health, welfare, support, vocational rehabilitation and retraining to GSMFN C_ (Applicant) with the intent to permanently deprive military member of his entitled aforementioned military benefits, military wages, and military compensation during a time of War per his unwarranted and illegal Mast Hearing and unfounded charges of Misconduct against GSMFN C_ (Applicant) per Commander H_’s Discharge of GSMFN C_ (Applicant).

Commander H_ knowingly and wrongfully committed this act of permanent larceny and wrongful appropriation after having been informed by GSMFN C_ (Applicant) of a pre-existing medical condition.

Commander H_ wrongfully appropriated the Discharge of GSMFN C_ (Applicant) based on false charges of misconduct under illegal circumstances.  Commander H_ wrongfully appropriated GSMFN C_ (Applicant) ‘s future military health, welfare, educational and vocational benefits, wages compensation, etc.

5)  ARTICLE 153-Conduct Unbecoming an Officer and a Gentlemen:

a.  This Article is not confined to conduct punishable by other Articles.  However, an act which violates another Article may, in addition, violate this one provided such act also amounts to conduct unbecoming an Officer and a Gentleman.  But if the act charged as conduct unbecoming an Officer and Gentleman constitutes a separate offense, the particular requirements of proof of such offense must be met in order to establish the charge.

b.  The Court has considered cases involving a violation of this Article (or its predecessors) which include the following charges: an accused with intent to deceive made a false statement to two special agents of the Federal Bureau of Investigation; wrongfully and knowingly permitting and assisting in the showing of lewd and obscene motion pictures; wrongfully and knowingly instructing a soldier to deny knowledge of lewd and obscene films he had procured should he be called to testify in connection with an investigation then pending; cheating on a written examination; assaulting and using obscene language toward his wife in a semi-public place; and misappropriation of food belonging to an enlisted men’s mess.

Commander H_ knowingly and willfully performed in manners blatantly disrespectful to that of an Officer representing the United States Military-Department of the Navy.

Commander H_ was witnessed discarding restricted government communications from GSMFN C_ (Applicant), in particular, Humanitarian Discharge documentation, into a waste reciprocal on the pier at Norfolk Naval Base.

Commander H_ performed the aforementioned Mast Hearing against GSMFN C_ (Applicant) out of Uniform with condescending, intimidating behavior and knowingly and willfully instructed shipmate GSMFN C_ (Applicant) that he would have to proceed without counsel because “HE” (Commander H_) denied him representation.

CONCLUSION:
Based upon the attached evidence, medical documentation, and Summary it is the Conclusion that GSMFN C_ (Applicant) respectfully request and state the following:
1)  Military Member GSMFN C_ (Applicant) and military spouse member, S_ C. (P_) C_, hereby agree to categorically dismiss all claims, including all future potential pending personal injury lawsuits and lawsuits of Discrimination against the Department of Defense, Department of the Navy, whether on behalf of Military Member GSMFN C_ (Applicant) and/or Military Spouse Member, S_ C. (P_) C_, independently and/or jointly rendering all matters and issues resolved including any and all outstanding medical bills, hospital bills, past, present or otherwise, upon the following condition(s) of the following Agreement:

2)  That Commander H_ Resign his Duty as Commanding Officer.

Commander H_ jeopardized the entire Command and Crew, including their extended families, during a time of War; because Commander H_ chose to take a deaf ear to one shipmate’s information upon his arrival to a New Command, INSTEAD of checking into GSMFN C_ (Applicant's) entire military file, medical history or simply placing a couple of phone calls to GSMFN C_ (Applicant’s) prior Commanding Officer’s B_ and J_ to inquire about his on-the-job performance, GSMFN C_ (Applicant’s) character or even to speak with a couple of GSMFN C_ (Applicant’s) former Chiefs-GSMFN C_ (Applicant) believes this conclusion is firmly founded and warranted due to the significant neglect, misconduct, and disobedience Commander H_ personally displayed toward the inappropriate Discharge of military member GSMFN C_ (Applicant).  GSMFN C_ (Applicant) believes that a simple request of the resignation of Commander H_ based upon the aforementioned testimony and evidence provided to the Board warrants significant improvement in Command.

GSMFN C_ (Applicant) respectfully and rightfully requested legal representation at his Mast Hearing not only because he knew he was entitled to such representation, but a/so because he believed his military career was in jeopardy before Commander H_, specifically; and, because of previous events with this Command regarding his pre-existing injury and other incidents.

Effective 19 JUL 02 GSMFN C_ (Applicant) was found Fit for Full Duty and returned to Full Duty Active Service.

[See Exhibit 2].

GSMFN C_ (Applicant) had a vested interest in protecting his secured vocational career change that he had secured with the USMC.

The Department of Defense is not a practicing entity of an “At-Will” Employer.  The United States Military-Department of Defense-Department of the Navy-under the direction of Commander H_ is Guilty of knowingly and willfully neglecting to support the vocational rehabilitation and retraining, as well as, the health and welfare management of military member GSMFN C_ (Applicant).

Effective 19 JUL 02 GSMFN C_ (Applicant) was found Fit for Full Duty and returned to Full Duty Active Service.

[See Exhibit 2].

In Fact, GSMFN C_ (Applicant) again during a time of War had to use his own better judgment, assess, adjust, adapt and make an executive decision based on the advice of medical experts in Neurology.  Again, Military Member GSMFN C_ (Applicant) had to depend upon his own caliber of character to do what was best for his military career, himself and his family.

GSMFN C_ (Applicant) made his own vocational rehabilitational choice.  Military member GSMFN C_ (Applicant) chose to make an intramilitary service transfer to the United States Marine Corps.

GSMFN C_ (Applicant) signed contractual documentation committing his employment with the USMC.

Commander H_ illegally and intentionally severed this vocational rehabilitation employment opportunity when he knowingly and willfully discriminatorily discharged GSMFN C_ (Applicant).  Furthermore, Commander H_ knowingly, willfully and wrongfully appropriated GSMFN C_ (Applicant)’s employment opportunity and vocational rehabilitation.

Effective 19JUL02 GSMFN C_ (Applicant) was found Fit for Full Duty and returned to Full Duty Active Service.

[See Exhibit 2].

The fact that Commander H_ denied legal representation to GSMFN C_ (Applicant) at his Mast Hearing not only contends that such Mast Hearing was not legal; and, therefore the subsequent Discharge is also without merit, but also states that because the vocational rehabilitation career that military member GSMFN/PFC C_ (Applicant) secured and obtained of his own free will without the aide, support or assistance from his Command or the Department of the Navy, respectfully demands and concludes that he be afforded the following:

3)  The opportunity to enlist in the United States Marine Corps with prior Military Service Record intact-General Discharge [appropriate Re-entry Code (RE-1)] 

Based upon the facts, evidence, medical, military and otherwise, it is the conclusion of military member GSMFN C_ (Applicant) that he be afforded the opportunity to endeavor in his vocation of choice, a Marine, something that was wrongfully appropriated from him due to the Misconduct of an Officer.

GSMFN C_ (Applicant) understands that he is not requesting to re-enlist.

GSMFN C_ (Applicant) agrees to enlist in the United States Marine Corps as a new recruit.  GSMFN C_ (Applicant) understands he will need to attend basic training camp at Paris Island, South Carolina.

GSMFN C_ (Applicant) understands that this is his vocational choice.  GSMFN C_ (Applicant) was found Fit for Full Duty Effective 19JUL02 and returned to Full Duty Active Service.

[See Exhibit 2].

This is military member GSMFN C_ (Applicant)’s proposed Agreement with the United States Military, Department of Defense, and Department of the Navy.

ALL MATTERS RESOLVED AND ACCEPTED AS STATED ABOVE.

J_ D. C_ (Applicant)
2251 Amherst Street
Columbus, OH 43223
(614) 274-7439

FROM THE ARMED FORCES OF THE UNITED STATES:
Department of the Navy
Naval Council of Personnel Boards
720 Kennon Street, S.E.
Room 309 (NDRB)
Washington Navy Yard, DC 20374-5023

T. E. D_, Director
Congressional Matters (PERS-3L)

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):
	
2. “It is not clear from the record exactly what caused the Applicant’s separation however, we invite you to the neuropsychological evaluation conducted by J_ M. C_, PH.D wherein he states the Applicant may not be able to function normally.  Based on this assessment we believe the Applicants medical condition contributed substantially to his discharge and request that you change the discharge accordingly.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Letter to Honorable Jo Anne Davis, U. S. House of Representatives, from Director of  Congressional Matters, Navy Personnel Command, dated June 23, 2004.
Letter to Honorable Geoffery C. Smith, Honorable Dan Stewart, Honorable Ray Miller, Honorable Bill Foster, dated September 20, 2004
EXHIBIT 1 - Medical Evidence (Great Lakes Naval Hospital, Fisher Medical Clinic, Great Lakes, IL, Froedtert Memorial Hospital, Curative Care Rehabilitative Services, Naval Medical Center, Portsmouth, VA) (232 pages)	
EXHIBIT 2 - Naval Memorandum from “P.A. M_” classifying SVM C_ (Applicant) 
“Fit for Full and Active Duty Service (16 pages)	
EXHIBIT 3 - Neuropsychological Evaluation from treating physician J_ D. C_, Ph.D.,
Clinical Neuropsychologist (4 pages)	
EXHIBIT 4 - Dr. C_ H_, treating Neurosurgeon to SVM C_ (Applicant), Discharge 
Instruction’s to USN (10 pages)	
EXHIBIT 5 - SVM C_ (Applicant)'s Official Orders to Norfolk, VA (4 pages)
EXHIBIT 6 - Letter from Congresswoman J_ D_ requesting Privacy Release Information 
to begin First Congressional Inquiry regarding USN’s Failure to Support 
SVM C_ (Applicant) (2 pages)	
EXHIBIT 7 - Tricare/Humana Military Statement verification of “Eligibility Expiration”
for SVM Spouse (5 pages)	
EXHIBIT 8 - Dr. K_, M.S.W., Ed.D., Forensic Evaluation of SVM Spouse C_ (4 pages)
EXHIBIT 9 - SVM Spouse C_’s State Contract with the Commonwealth of Virginia, 
Department of Vocational Rehabilitation, Individualized Plan for Employment (5 pages)
EXHIBIT 10 - SVM Spouse C_’s State Contract with the State of Florida, Department of Vocational Rehabilitation, Individualized Plan for Employment (2 pages)	
EXHIBIT 11 - SVM Spouse C_'s State Contract with the State of Ohio, Department 
of Vocational Rehabilitation, Individualized Plan for Employment (23 pages)	
EXHIBIT 12 - SVM Spouse C_'s Consent for Treatment Mary Washington Hospital/
Snowden (3 pages)	
EXHIBIT 13 - SVM C_ (Applicant)’s USN Separation Travel Orders	
EXHIBIT 14 - SVM C_ (Applicant)’s USN Preseparation Counseling Checklist	
EXHIBIT 15 - SVM C_ (Applicant)’s CERTIFICATIONS and REENLISTMENT 
HONORABLE DISCHARGE (10 pages)	
EXHIBIT 16 - SVM C_ (Applicant)’s MILITARY SCHOOLS, TRAINING, 
CERTIFICATIONS (8 pages)	
EXHIBIT 17 - SVM C_ (Applicant)’s MILITARY EVALUATIONS (28 pages)	
EXHIBIT 18 - SVM C_ (Applicant)’s MILITARY PRESENCE of ATTENDANCE 
SCROLLS (5 pages)	
The United States Navy, The Blue-Shirt German and EXTORTION

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	961026 - 970527	COG
	Active:   USN 			970528 - 010525	HON

Period of Service Under Review:

Date of Enlistment:  010526		Date of Discharge:  040425

Length of Service (years, months, days):

	Active:    02 11 00 (Does not exclude lost time) 	(06 07 17 total time) 
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  51

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  2.50 (2)		OTA:  3.13

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, BATTLE “E”, NUC, SSDR, Navy Pistol Marksman Ribbon

Days of Unauthorized Absence:  98

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:

010526:	Applicant reenlisted for 6 years and received reenlistment bonus.

020405:	Naval Medical Center Portsmouth, VA:  MRA of Brain.  Impression: No aneurysms larger than 3-5 mm in size are identified.

020425:	Emergency Care and Treatment, Naval Hospital, Great Lakes: Chief Complaint: Headache.  23 yr old male c/o H/A frontal for 2 ½ days.  Right frontal and intracranial hemorrhage.  Pt will be transferred to civilian treatment facility.

020426:	Transferred to Froedhart Memorial Hospital.

020427:	CT Head w/o contrast. CT scan of the brain. Impression: Right frontal parenchymal hematoma.

020428:	Contrast enhanced MRI examination of the brain was performed.  Impression: Acute and early subacute right frontal lobe hematoma.  Follow-up imaging in six weeks to two months is recommended after hematoma resolves.

020509:	Froedtert Memorial Hospital: Discharge instructions: The patient is to have a repeat conventional angiogram and repeat MRI scan of the brain in 2 weeks after the patient’s discharge, which should be arranged by the physician designated by the U.S. Navy and who will further follow the patient clinically and take appropriate action.

020719:	CO, NAVHOSP, Great Lakes found Applicant fit for duty.

020722:	Fisher Medical Clinic, Great Lakes: Fit for full duty worldwide.

020923:	Applicant reported to USS ARLEIGH BURKE (DDG-51) for duty.

030214:	NJP for violation of UCMJ, Article 92.
	Award:  Forfeiture of $300 per month for 2 months, restriction and extra duty for 30 days, reduction to E-3.  Forfeiture suspended for 6 months.  No indication of appeal in the record.

030508:	USS ARLEIGN BURKE DDG 51: Applicant complaining of headache for 36 hours.  States that he had headaches off and on for the past 48 hours.  

031114:	Applicant to unauthorized absence.

040222:	Applicant from unauthorized absence (98 days/surrendered).

040425:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, authority:  NAVMILPERSMAN, Article 1910-142.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040425 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1:  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  After a review of Applicant’s case the Board discovered no impropriety or inequity.  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 his/her 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.  Despite the servicemember’s medical condition, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service was marred by a nonjudicial punishment proceeding for violation of UCMJ Article 92 (failure to obey order) and further marred by a violation of Article 86 (unauthorized absence in excess of 30 days) thus substantiating the misconduct for which he was discharged.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Separation under these conditions normally results in a characterization of service of under other than honorable conditions.  Relief is not warranted.

The Applicant alleged that his other than honorable discharge is inequitable because the Commanding Officer failed to allow the Applicant to comply with his aftercare orders, deprived the Applicant and his spouse of health, welfare, family support, educational service, federal wages, compensation benefits, and discriminated against the Applicant during his Naval Service.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant’s statements alone do not overcome this presumption and the record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else in the discharge process.  The Applicant was found medically fit for full duty and worldwide deployment prior to assignment to the USS Arleigh Burke (DDG-51).  Furthermore, the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues.  The Applicant provided no evidence and there is no evidence in the record to support his claim of inequity.  Relief denied.  

The Applicant contends that his discharge was improper because he was not properly represented by legal counsel, was not allowed to defend himself, and that his Captain’s Mast was conducted improperly.  Administrative Separation by reason of commission of a serious offense does not require adjudication by nonjudicial proceedings, judicial proceedings or civilian conviction.  The offense must only be substantiated by a preponderance of the evidence.  Statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  Furthermore, the record does not contain evidence that demonstrates the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Relief denied.  

The Applicant makes unsubstantiated claims that Commander H_ jeopardized the safety of the crew and is guilty of violating multiple Articles of the UCMJ.  Also he demands that Commander H_ be relieved of command.   Addressal of these claims is outside the scope and authority of the Naval Discharge Review Board.

The Applicant alleges his medical condition prevented him from functioning effectively in his assigned rate.  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 generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  Furthermore, the Applicant repeatedly states that he was medically cleared as fit for duty and worldwide deployment.  The Applicant’s misconduct began before the onset of symptoms his medical condition and his misconduct continued after his condition was resolved.  Relief is not warranted.

For the edification of the Applicant, the NDRB does not have the authority to change a narrative reason for separation to one for a medical condition or “medical discharge” as requested.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  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 submitted insufficient documentation for the Board to consider.  

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.  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, for 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