ex-SN, USN
ND07-00668

Current Discharge and Applicant’s Request

Application Received:  20070419 	Characterization Received:   (entry level separation)
Narrative Reason:  FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS Authority:  MILPERSMAN 1910-130

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Desire to re-enlist

Decision

By a vote of  the Characterization shall   (entry level separation).
By a vote of  the Narrative Reason shall  FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS.

Date:  20071129			Location:  Washington D.C	 Representation:  

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .

While the Board acknowledged and commends the Applicant’s apparent heartfelt desire to serve his country, the Board found that the record fully supported the conclusion that the Applicant was erroneously enlisted.  The Board advises the Applicant that by regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is considered the most appropriate characterization of a member’s service.  The Applicant's service record did not contain any unusual circumstances during his less than 2 months in the military to warrant a change of discharge to honorable.  The NDRB advises the Applicant that, with respect to nonservice related administrative matters, i.e. Department of Veterans Affairs benefits, civilian employment, etc., an uncharacterized separation shall be considered the equivalent of an honorable or general (under honorable conditions) characterization.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)  20040629- 20050619  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20050620	Years Contracted:   (National Call to service, 15 Mths active) Date of Discharge:  20050802
Length of Service:  00  Yrs  01  Mths  13  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  		Age at Enlistment:  		AFQT:  50	Highest Rank/Rate:  SN
Evaluation marks (# of occasions):	N/A	Awards and Decorations (per DD 214):  NONE (Record indicates NDSM)

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20050702:	Medical Record:  Reason for visit:  Trouble breathing during exercise
	Diagnosis:  RAD?  
	Recommendation:  Albuterol; fit for full duty; increase fluids

20050705:	Medical Record:  Reason for visit:  Follow up, Shortness of breath
	Diagnosis:  Upper respiratory infection; RAD
	Recommendation:  continue meds; Deconamine; Benzonatate; Halls Cough Drops/LD/Follow up w/asthma clinic evaluation

20050709:	Medical Record:  Reason for visit:  Shortness of breath
	Diagnosis:  Asthma?  Upper respiratory infection
	Recommendation:  Light duty until clear; increase fluids; continue meds

20050720:	Medical Record:  Reason for visit:  Shortness of breath
	Diagnosis:  Mild persistent asthma
	Recommendation:  Advain and Alb; ELMS; follow up w/PCM 2x/yr.

20050721:	Medical Record:  Reason for visit:  Follow up ELMS
	Diagnosis:  Asthma, EPTE.  Not correctable to Navy standards
	Recommendation:  Light duty; increase fluids

Discharge Process

Date Notified:					20050725
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20050725
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 
Separation Authority (date):	CO, RECRUIT TRAINING COMMAND (20060727)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050802

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    		Other Documentation (Describe)       

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 20 Jun 2005 until Present, Article 1910-130, Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

B.  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 V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, 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.  

Board Membership:  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