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NAVY | DRB | 2006_Navy | ND0600335
Original file (ND0600335.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ASAN, USN
Docket No. ND06-00335

Applicant ’s Request
The application for discharge review was received on 20051223 . 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 20061025 . 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 by reason of misconduct due to commission of a serious offense.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“To Whom It May Concern:
I am writing to request that my discharge status be changed.
I am listed as being discharged under “other than honorable circumstances”.
I am requesting that my records be reviewed and my status changed to “general” or “under honorable circumstances”

I make this request so that I may make an appeal to the Veterans Administration for compensation for my service related injuries.

I am including copies of parts of my military medical records which show evidence of my service related injuries.
I sustained a serious injury to my left leg and developed cellulitis while I was receiving military medical treatment for this injury.
As a result of the injury which was just below my knee I will have life long problems and pain. I have already had arthiscopic surgery two times and will require a knee replacement later in life.

I also have sustained hearing loss as a result of my working conditions as an Aviation Support Technician.
You will find the documentation of my hearing loss enclosed as well.

I believe had I been released from duty after my injury, for medical reasons, the circumstances which led to my “other than honorable” status would have been avoided

I feel I should receive some sort of compensation for these service related injuries which will affect me for the rest of my life.

I appreciate your consideration. Thank you for your time.

Sincerely,

P_ W. C_
(social security number deleted) ”




Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Letter from Applicant , undtd
 Applicant ’s DD Form 214 (Service 2) (2)
Twenty-eight pages from Applicant ’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     1989042 2 – 19890426       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19890427              Date of Discharge: 19930426

Length of Service (years, months, days):

         Active: 0 4 00 00 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              38 days

Age at Entry: 20

Years Contracted: 4
Education Level: 1 1 GED                     AFQT: 52/62

Highest Rate: ASAN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: Unavailable                            Behavior: Unavailable              OTA:

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


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense , authority: MILPERSMAN, Article 3630600 .
Chronological Listing of Significant Service Events :

920903:  Applicant was treated multiple times from 920923 to 930312 for medical related issues. These issues are not relevant to the Applicants discharge.
930309:  Applicant stated during a Psychological evaluation that he was in trouble with the military. He has 6-8 report chits within the last 2 months for various offenses including unauthorized absence, possession of illegal weapons and storage of weapons on NAWS property. He illicits a history of juvenile offenses including contempt of court, disorderly conduct, illegal vehicle citation and marijuana abuse prior to entry.

 930319:  Applicant found fit for confinement by competent medical authority .

930319:  Applicant transported to confinement in Naval Brig Long Beach, Ca .

930322:  Applicant ’s signed Acknowledgement and waiver charging him with
l ew d and lascivious acts with a child under 14 .
930329:  A w arrant was issued by Kern County for arrest of Applicant for lewd or lascivious acts with child under 14.
930401:  Applicant arrested on four counts of violating Penal code 288(A) - lewd or lascivious acts with a child under the age of 14.

930401 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of serious offense as evidenced by your carnal knowledge and lewd and lascivious acts with a child under age 16.

930401 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and submit a statement.




930406 :  Commanding Officer, Naval Air Weapons Station, China Lake, California, recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offense . Commanding Officer’s comments: “ ASAN C_( Applicant ) has no place in the United States Navy. His conduct was a serious violation of the UCMJ and California state law. I most strongly recommend ASAN C_ be discharged with an Other Than Honorable characterization of service .”
930413 :  BUPERS, directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

930426:  Applicant discharged in absentia (38 days).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930426 by reason of misconduct due to commission of a serious offense (A) with a service characterization of under other than honorable conditions. 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 ( B and C ).

The Applicant states “I am requesting that my records be reviewed and my status changed to “general” or “under honorable circumstances . ” 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. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by his civil arrest on 19930401 an subsequently being charged with four counts of violating Penal code 288(A) – Lewd or lascivious acts with a child under the age of 14. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant is seeking compensation for service related injuries sustained while on active duty. 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 does not consider the circumstances surrounding the Applicant’s stated condition or 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. Relief is not warranted.

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), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
B . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C . 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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