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

ex-AR, USN
Docket No. ND00-00215

Applicant’s Request

The application for discharge review, received 991130, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 000803.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: NAVMILPERSMAN, Article 3620260.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Request discharge be upgraded to Honorable as no criminal acts were involved requiring any courts martial or captains mast.

Documentation

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

Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  None

Period of Service Under Review:

Date of Enlistment:  920610		Date of Discharge:  951114

Length of Service (years, months, days):

	Active:    03  05  05 (Doesn't exclude UA and confinement time)
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  64

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.72 (5)	Behavior:  3.6 (5)		OTA:  3.4

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SWASM (w/1 Bronze Star) 

Days of Unauthorized Absence:  28 

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

GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority:  NAVMILPERSMAN, Article 3620260.

Chronological Listing of Significant Service Events:

920114:	Enlistment Physical Examination Report.  Initial HT - 71 inches, WT - 234 lbs, Build - Medium.  Recheck on 920227:  WT- 222 with BF - 24%.

930429:	Unauthorized absence from USS CONTELLATION, Mayport, FL.  Intention unknown.

930527:	Returned to military control at 1230 to NAVMARCORESCEN Des Moines, IA and transferred to TPU, San Diego, CA awaiting return of USS CONSTELLATION homeport arrival.

930529:	USS CONSTELLATION declared applicant a deserter from been an unauthorized absentee since 0700, 29 Apr 93 from ship.

930722:	Returned on-board USS CONSTELLATION.

930908:	Summary Court Martial
Charge:  violation of UCMJ Article 86: UA from 93APR29 until 93MAY27 (28 days).
	Sentence:  Forfeiture of $542.00 per month for 1 month, confinement for 24 days with 3 days bread and water, reduction to E-1.  Accused not represented by legal counsel.
	CA 93SEP13:  Sentence approved and ordered executed.

930908:	To confinement.

930929:	Applicant released from confinement and returned to full duty status. (21 days)

940429:	Risk Factor Screening/Physical Readiness Test Results:  HT - 73", WT -225 lbs, BF - 26%.  Failed body fat percentage.

941021:	Risk Factor Screening/Physical Readiness Test Results:  HT - 72", WT -246  lbs, BF - 26%.  Failed body fat percentage.

941130:	Counseling:  Applicant advised that he failed to meet the physical readiness standards due to being measured at 24 percent body fat on 94NOV30 and failure of the PRT on 24OCT21.  Placed on the command’s sponsored physical conditioning program.  Sources of assistance included.  Advised if this is the third failure in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

950419:	Risk Factor Screening/Physical Readiness Test Results:  HT - 73", WT -236 lbs, BF - 26%.

950520:	Counseling:  Applicant advised of his failure of the physical readiness test (PRT) on 27JUL95. Enrolled on the command’s sponsored physical conditioning program.  Sources of assistance included.  Advised if this is the third failure in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

960523:	Counseling:  Applicant advised that he failed to meet physical readiness standards due to being measured at 26 percent body fat on 94Apr19 and enrolled in the command’s sponsored physical conditioning program.  Sources of assistance included.  Advised if this is the third failure in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

950526:	Risk Factor Screening/Physical Readiness Test Results:  HT - 70", WT -233 lbs, BF - 26%. Failed run portion of 14JUN95 PT.

951025:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of weight control failure as evidenced by failure to achieve prescribed physical readiness standards in April 1994, October 1994 and June 1995.

951030:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960125:	Commanding officer advised BUPERS that applicant was discharged on 14 Nov 94 with general (under honorable conditions) by reason of weight control failure due to not being within the weight standards. 

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 951114 with a general (under honorable conditions) for weight control failure (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to applicant’s issue 1, the applicant stated that he requests that his “discharge be upgraded to Honorable as no criminal acts were involved requiring any courts martial or captains mast.”  The Board found that the applicant went to Summary Court Martial on 8 September 1993 for violation of UCMJ Article 86: unauthorized absence.  No relief will be granted concerning this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 
 
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 3620260, SEPARATION OF ENLISTED PERSONNEL BY REASON OF WEIGHT CONTROL FAILURE 

B.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 21 Dec 94 until 02 Oct 96, Article 3420440, HEALTH AND PHYSICAL READINESS PROGRAM

C.  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.  

D.  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.

E.  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.

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 “afls14.jag.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:

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