DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-510
0
TRG
Docket No:
18 July 2001
6770-00
Chairman, Board for Correction of Naval Records
Secretary of the Navy
RECORD OF
(a) Title 10 U.S.C. 1552
(1) Case Summary
(2) Subject's naval record
From:
To:
Subj:
Ref:
Encl:
Pursuant to the provisions of reference (a), Petitioner, a
1.
former enlisted member of the United States Navy filed enclosure
(1) with this Board requesting that his record be corrected to
show to show that he was not discharged on 21 February 1997 but
continued to serve on active duty.
The Board, consisting of Mr. Brezna, Mr. Dunn and Mr. Mackay,
2.
reviewed Petitioner's allegations of error and injustice on
10 July 2001 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.
Documentary material considered by
The Board, having
3.
to Petitioner's allegations of error and injustice, finds as
follows:
.reviewed all the facts of record pertaining
a.
Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b.
Although it appears that Petitioner's application was
not filed in a timely manner,
waive the statute of limitations and review the application on
its merits.
it is in the interest of justice to
C .
Petitioner reenlisted in the Navy on 29 July 1994 for
Subsequently, he was advanced to BU2 (E-5).
three years.
February 1997 he was notified of separation processing by reason
In connection with this processing,
of weight control failure.
he elected to waive his right to have his case heard by an
After review, the discharge
administrative discharge board.
authority directed an honorable discharge by reason of weight
control failure.
was paid separation pay in the amount of
he was not recommended for reenlistment and was assigned an RE-4
He was so discharged on 21 February 1997 and
8,672.34.
On 13
At that time,
reenlistment code.
d.
Attached to enclosure (1) are advisory opinions from the
Navy Personnel Command which state that Petitioner failed to
meet body composition assessment standards on five occasions.
However, on the first two occasions he was not formally counseled
as required concerning the administrative consequences.of his
failure to meet standards and, therefore, those two assessments
should not be considered as failures.
conducted by a physician and not the
and, therefore, this assessment should not count as a failure.
The fourth body composition assessment was invalid because it was
not conducted at least 48 hours prior to the physical readiness
test.
opinions conclude that since there is only one valid body
composition assessment, Petitioner does not meet the requirement
for three failures in a four year period and, therefore, he was
discharged in error.
The third assessment was
command fitness coordinator
The fifth assessment was considered valid.
The advisory
e.
The Board is aware that when a discharge is found to be
in error, an individual is only entitled to service until the
expiration of the enlistment on which he was serving at the time
of discharge. In this case,
Petitioner's three year enlistment
would have expired on 28 July 1997.
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action.
The Board notes that Petitioner actually failed the body
fat composition standards but these failures cannot be counted as
such for technical reasons.
the Board agrees with the advisory opinions that Petitioner
should not have been discharged due to weight control failure on
21 February 1997.
Therefore, the record should be corrected to
show that he was not discharged on 21 February 1997 but continued
to serve on active duty until the expiration of his enlistment on
28 July 1997.
His discharge on that date should be considered to
be involuntary to prevent recoupment of the separation pay he
already has received.
However, given the circumstances,
Concerning the reenlistment code to be assigned, the Board
concludes that since the body composition assessments cannot be
used for discharge processing,
assignment of the RE-4 reenlistment code.
reenlistment code assigned on 28 July 1997 should be RE-1.
However, Petitioner will have to meet weight standards before
reenlistment will be authorized.
they cannot be used in the
Accordingly, the
RECOMMENDATION:
That Petitioner's naval record be corrected to show that
a.
he was not discharged on 21 February 1997 but continued to serve
until he was honorably discharged on 28 July 1997 at the
expiration of his enlistment with an RE-1 reenlistment code.
This discharge should be considered involuntary for the purposes
of payment of separation pay.
b. That any material or entries inconsistent with or relating to
the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future_
C . That any material directed to be removed from Petitioner's
naval record be returned to the Board,
of Proceedings, for retention in a confidential file maintained
for such purpose, with no cross reference being made a part of
Petitioner's naval record.
together with this Report
It is certified that a quorum was present at the Board's
4.
review and deliberations,
and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
ROBERT D. ZSALMAN
Recorder
Acting Recorder
5.
Pursuant to the delegation of
6(e) of the revised Procedures of
Naval Records (32 Code of Federal
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a),
has been approved by the Board on
behalf of the Secretary of the Navy.
authority set out in Section
the Board for Correction of
Regulations, Section 723.6(e))
Executive
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