DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
70! S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204.2490
JRE
Docket No.5947-14
22 January 2015
. This is in reference to: your application for correction of your
_ Raval record pursuant to the provisions of title 10 cf the.
United States Code, section 1552. Although the application was
_ not filed in a timely manner the Board found it in the interest
of justice to consider it.
A three member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 22 January 2015. your allegations of error and
reason of misconduct, and you were so discharged on 2 March
1995. On 8 February 1989, the Naval Discharge Review Board
{(NDRB) upgraded your discharge to honorable and changed the
basis of your separation to “Physical Standards” (weight control
failure). The NDRB found that the criteria for separation by
reason of misconduct/commission of a serious offense had not
been met in your case because simple assault not consummated by
a battery was not a serious offense as that term was defined in
the regulations governing enlisted administrative separations.
The NDRB noted, however, that the criteria for separation by
reason of weight control failure had been met in your case, and
that you would have been separated for that reason if you had
not been discharged by reason of misconduct.
The Board could not find any indication in the available records
or your application that you were unfit for service by reason of
physical disability at the time of your discharge. It noted that
although your discharge by reason of misconduct was erroneous,
you would not have been permitted to remain on active duty in
any event, given your documented failure to meet weight control
and physical readiness standards. In addition, the Board noted
that there are no provisions of law or regulation which permit
it to grant compensation for pain and suffering. Accordingly,
your application has been denied. |The names and votes of the
members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence within one year from the date of the Board’s
decision. New evidence is evidence not previously considered by
the Board prior to making its decision in your case. In this
regard, it is important to keep in mind that a presumption of
regularity attaches to all official records. Consequently, when
applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of
probable material error or injustice.
Sincerely,
ROBERT J. O’ NEILL
Executive Director
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