ex-MA3, USN

Current Discharge and Applicant’s Request

Application Received:  20080708
Characterization of Service Received:  
Narrative Reason for Discharge:  PHYSICAL STANDARDS
Authority for Discharge:  MILPERSMAN  (PHYSICAL STANDARDS)

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20020730 - 20030114  		Active:  

Period of Service Under Review:
Date of Enlistment:  20030115	 Period of Enlistment:   Years   Extension	Date of Discharge:  20061120
Length of Service:   Years     Months   06 Days	 Education Level:  	Age at Enlistment:  	AFQT:  48
Highest Rank/Rate:  MA3	Evaluation Marks:  Performance:	3.5 (2)	Behavior: 1.0 (2)	OTA: 2.71
Awards and Decorations (per DD 214):  Rifle   (2)  

Periods of UA/CONF:       NJP:  

Retention Warnings:  
- 20030221:  For failure to ensure proper documentation of your pre-service civil involvement/convictions, September 
                      2000, in Tampa, FL you were issued two citations; speeding, and driving without a seatbelt, both Chart “A” 
                      minor traffic offenses.  You pled guilty and were fined $182.00, which is paid in full.  Information 
                      concerning the above disclosure was provided by a police record check and your voluntary statement of 
                      20030205.  Be advised that if the information provided is determined to be false, this Page 13 may be 
                      considered void.

- Undated:  For failure to meet physical readiness test standards.

- 20050713:  For failure to meet physical readiness test standards.

- 20060525:  For failure to meet body composition assessment and physical readiness test standards.  This is your 4th 
                      failure to meet standards.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 3 August 2005 until Present, MILPERSMAN Article 1910-170, SEPARATION BY REASON OF PHYSICAL FITNESS ASSESSMENT FAILURE.

B.  NAVADMIN 180/05, 271525Z JUL 05, PHYSICAL READINESS PROGRAM.

C.  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.

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

Applicant’s Issues

1.  Inequitable discharge.

Decision

Date:  20081030	        	Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PHYSICAL STANDARDS.

Discussion

:  ()  .  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.  The Applicant contends his discharge characterization was based only on his body fat percentage.  In reality, the Applicant’s discharge was based on his failures of one cycle of body composition assessment and three cycles of physical readiness standards.  The Applicant’s appearance and performance was not in keeping of the high standards of a U.S. Sailor; specifically during the period his weight increased by 58 lbs, his waist by 2.5 inches, and his run time for 1.5 miles increased from 14:51 to 18:00 minutes.

However, after reviewing the Applicant’s record of service, no misconduct was noted and the Applicant had average evaluation marks of 3.2 (Performance) and 1.0 (Behavior), based on limited reports, which calculates to an Overall Total Average of 2.71.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper but not equitable.  Due to the fact that the Applicant’s Overall Total average was not below a 2.50, the Board determined an upgrade to “Honorable” would be appropriate.

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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