DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
TRG
Docket No: 2813-00
7 February 2001
Chairman, Board for Correction of Naval Records
Secretary of the Navy
RECORD 0
USN,
(a) Title 10 U.S.C. 1552
(1) DD Form 149 w/attachments
(2) Case Summary
(3) 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 recharacterization of his
discharge to honorable and changes in the reason for discharge
and reenlistment code.
record be corrected to show a period of constructive service and
transfer to the Fleet Reserve under the provisions of the
Temporary Early Retirement Authority (TERA).
In the alternative, he requests that his
The Board, consisting of Mr. Zsalman, Mr. Rothlein and Ms.
2.
Hardbower, reviewed Petitioner's allegations of error and
injustice on 30 January 2001 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record.
considered by the Board consisted of the enclosures, naval
records, and applicable statutes,
regulations and policies.
Documentary material
The Board, having reviewed all the facts of record pertaining
3.
to Petitioner's allegations of error and injustice, finds as
follows:
a.
Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b.
Enclosure (1) was filed in a timely manner.
C .
Petitioner reenlisted in the Navy on 16 March 1995 for
The record shows that Petitioner continued to
four years.
perform his duties in an excellent to outstanding manner.
However, during the period 19 October 1995 to 9 October 1997 he
filed to meet the body fat standards on three occasions.
On 9
October 1997 his body fat was
obese.
test, he was a physical readiness test (PRT) failure due to
obesity.
Although he passed the physical fitness portion of this
32%, which is considered to be
d.
PRT failures
Since Petitioner had accumulated three
adminiStratiVe
within four years, he was processed for an
In connection with this processing, he was advised by
discharge.
letter of 31 October 1997, that he could elect or waive his right
to an administrative discharge board (ADB) and that he could
By return endorsement, dated 1 November
consult with counsel.
He did not consult with
197, he waived his right to an ADB.
counsel.
On 3 November 1997 the commanding officer directed
On 12 January
discharge by reason of weight control failure.
1998 he was issued a general discharge and was paid separation
pay in the amount of
an
completed 14 years, 8 months and 10 days of active service.
On the date of discharge, he had
At that time, he was assigned
RE-ST reenlistment code.
$17,611.43.
e.
Petitioner contends that there was no lawyer attached to
his ship with whom he could consult and he received no advice
concerning his right to request an ADB, and the ship's legal
officer caused him to waive his rights.
would have delayed his discharge and would have given him an
opportunity to present a case for retention in the Navy. He
points out that although he did not meet the weight standards, he
passed the physical fitness portion of the PRT with a score of
outstanding.
He contends that an ADB
f.
The Board is aware that during the FY 1998 and 1999 TERA
programs, individuals serving in the rate of
Petitioner were eligible to request early retirement.
CONCLUSION:
HTl (E-6) such as
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable action.
The Board notes Petitioner's excellent performance of duty and that
his failure of the weight standards was mitigated by the fact that
he was outstanding on the physical fitness portion of the last PRT.
The Board also believes that although
rights was not legally invalid,
he may not have fully understood the
importance of requesting an ADB.
Given the circumstances, the Board
Petitioner should have been, retained
concludes that, in retrospect,
on active duty and provided with an opportunity to retire under
TERA.
that the only adverse evaluation marks he received were caused by
his failure to meet the weight standards and his conduct and
performance of duty were excellent.
that the characterization of service on transfer to the Fleet
Reserve should be honorable.
Accordingly, Petitioner's record should be corrected to show that
he was not discharged on 12 January 1998, but continued to serve
Concerning the characterization of service, the Board notes
Therefore, the Board concludes
Petitioner's waiver of
2
on active duty until the earliest possible date he could transfer
to the Fleet Reserve under TERA with 15 years of active service.
This date is believed to be 1 June 1998 but the actual date will
be computed by the Navy Personnel Command.
of his service on transfer should be honorable.
conclusion, the Board is aware that recoupment of the severance
pay is required.
The characterization
In reaching this
The Board further concludes that this Report of Proceedings
should be filed in Petitioner's naval record so that all future
reviewers will understand Petitioner's status in the Fleet
Reserve.
1
RECOMMENDATION:
a.
That Petitioner's naval record be corrected to show that he
was not discharged on 12 January 1998 but continued to serve on
active duty until he transferred to the Fleet Reserve under TERA
at the earliest possible date with his service characterized as
honorable.
That this Report of Proceedings be filed in Petitioner's
b.
naval record.
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.
/
,.-.--
j
7
ROBERT D. ZSALMAN
Recorder
ALAN E. GOLDSMITH--
Acting Recorder
Pursuant to the delegation of authority set out in Section
5.
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a),
Board.on
behalf of the Secretary of the Navy.
has been approved by the
3
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