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




ex-SN, USNR
Docket No. ND97-01370


Applicant’s Request

The application for discharge review, received 970904, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary discharge review and listed no representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980928. The NDRB determined that the discharge was proper and equitable. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: NAVMILPERSMAN, Article 3620250.
SPD CODES ARE LISTED IN NAVMILPERSCOMINST 1900.8 EFFECTIVE 28 Jun 93 until PRESENT. Block 24, Character of Service (Enter in all capital letters. See enclosure 1, page 17)
SPD CODE IS JCR AND THE AUTHORITY LIST IN THE INSTRUCTION READS “3620250” BUT SHOULD READ “3620260”. CHARACTERIZATION OF SERVICE WRITTEN AS :

HONORABLE
GENERAL (UNDER HONORABLE CONDITIONS)
UNDER OTHER THAN HONORABLE CONDITIONS
BAD CONDUCT
DISHONORABLE
UNCHARACTERIZED (Void or Entry Level Separation)

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PART I - APPLICANT’S ISSUES (verbatim)

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD-293 is blank.

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Active: None
         Inactive: None

Period of Service Under Review :

Date of Enlistment: 930929                        Date of Discharge: 961230

Length of Service (years, months, days):

         Active: 03 01 05
         Inactive: 00 01 05

Age at Entry: 20                                   Years Contracted: 8

Education Level: 12                                 AFQT: 55

NEC: DG-9700 (Seamanship                 Highest Rate: SN
Specialist)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.80 (2)             Behavior: 3.90 (2)                OTA : 3.90

Military Decorations: None

Unit/Campaign/Service Awards: B“E”R, NDSM, and .45 cal Sharpshooter Medal

Nonjudicial Punishment(s): 1              Court(s)-Martial: None

Days of Unauthorized Absence: 22

Character, Narrative Reason, and Authority of Discharge:

GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: NAVMILPERSMAN, Article 3620260. ¹

RECORDER’S NOTE:

¹ DD Form 214, Block 25 (Separation Authority) should read “MILPERSMAN 3620260” vice “MILPERSMAN 3620250”.

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PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS¹


930929:  Standard Form 88 (Report of Medical Examination): Enlistment Physical Exam at Wilkes Barre, PA MEPS listed applicant’s HT – 72”, WT – 222 lbs, Build – Heavy, and Body Fat – 22%.

931104:  Commenced 36 months on active duty in the Seaman Apprenticeship Guarantee Program at CRUITRACOM Great Lakes, IL.

940217:  Joined USS ORTOLAN (ARS-22) in Charleston, SC.

940307:  USS ORTOLAN Medical Department: Health record verification listed applicant’s HT – 71”, WT – 208 lbs, and Body Fat – 19%.

950330:  Voluntarily extended on active duty for 17 months onboard USS ORTOLAN.

9504XX:  Joined Service School Command, Great Lakes, IL.

950908:  NJP for violation of UCMJ, Article 86: UA from 0650, 950802 until 0700, 950824 (22 days/Surrendered onboard USS ORTOLAN), and Article 92: Failure to obey a lawful order (FOLO) (unspecified).
         Award: Forfeiture of $478 per month for two months, restriction and extra duty for 45 days, and reduction to E-2. There was no indication of an appeal in the record.

9509XX:  Retention Warning: Advised of deficiencies (UA and FOLO); notified of corrective actions and assistance available; advised of the consequences of further deficiencies, and issued a discharge warning. Receipt acknowledged.

9511XX:  Joined SUSTAIN (AFDM-7), Norfolk, VA.

961230:  Discharged GENERAL (UNDER HONORABLE CONDITIONS)/ WEIGHT CONTROL FAILURE, authority: NAVMILPERSMAN, Article 3620260. ²

RECORDER’S NOTE:

¹ The source for all entries is the service record (includes medical/dental record) unless otherwise noted. The service record is incomplete.

² DD Form 214, Block 25 (Separation Authority) should read “MILPERSMAN 3620260” vice “MILPERSMAN 3620250”.

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PART IV - EXTRACT OF PERTINENT REGULATION/LAW


A. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW, states, in part:

“2.9 Evidence Supporting Applications

In the absence of law, evidence or policy to the contrary, naval discharge shall be considered just, equitable and proper as issued. When hearings are scheduled, applicants must be prepared to present their case at the scheduled time. In the absence of any other evidence, naval discharge review shall be undertaken by examination of available service and health records of the applicant. Normally, the responsibility for presenting evidence from outside available service and health records shall rest with the applicant. Applications in which elements of relevant information are obviously omitted will be returned for completion and resubmission.

2.10 Review Action in Instances of Unavailable Records

In the event that Department of the Navy personnel or health records associated with a requested review of discharge are not located at the custodial activity, the following action shall be taken by the NDRB prior to consideration of the request for discharge review.

a. A certification that the records are unavailable shall be obtained from the custodial activity.

b. The applicant shall be notified of the situation and requested to provide such information and documents as may be desired in support of the request for discharge review. A period of not less than 30 days shall be allowed for such documents to be submitted. At the expiration of this time period, the review may be conducted with information available to the NDRB.

c. The presumption of regularity in the conduct of government affairs may be applicable in instances of unavailable records depending on the circumstances of the case. (See paragraph 2.11)

2.11 Regularity of Government Affairs

There is a presumption of regularity in the conduct of governmental affairs. This presumption can be applied in any review unless there is substantial credible evidence to rebut the presumption.”

B. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective
03 Oct 96 until 11 Dec 97), Article 3620260, SEPARATION OF ENLISTED PERSONNEL BY REASON OF WEIGHT CONTROL FAILURE, states:

1. Basis. A member may be separated by reason of weight control failure when he or she fails to achieve prescribed physical readiness standards as outlined in OPNAVINST 6110.1D and the guidelines of Article 3420440.

2. Procedures
a. The Notification Procedure (3640200.5 and 6) shall be used.
b. The following documentation is required for processing:
(1) commanding officer's certification that member is militarily unsuitable for retention
due to member's failure to achieve prescribed physical readiness standards;

(2) certified copy of the NAVPERS 1070/613, Administrative Remarks (Page13) service
record entry (see Article 3420440.5c(7)) counseling member and placing member on the physical readiness program;

(3) summary of action taken by the command, member's progress, and counseling offered as outlined in Article 3420440;

(4) copy of Notification Procedure and Letter of Transmittal (Article 3640200);

(5) copy of member's Risk Factor Screening and Physical Readiness Test results for the
three official failures;

(6) member's statement of rebuttal or consent to the recommended separation action.

3. Characterization or Description. Honorable, unless:

a. An Entry Level Separation is required in paragraph 3a of Article 3610250 ; or

b. characterization of service as General is warranted in paragraph 2b of Article 3610250 on the basis of the Enlisted Performance Evaluation System.

C. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective
03 Oct 96 until 11 Dec 97), Article 3420440, HEALTH AND PHYSICAL READINESS PROGRAM, states:

1 . Every member, officer and enlisted, should strive to achieve and maintain the highest standards of physical readiness to ensure the operational effectiveness of the Navy. Member's failure to achieve prescribed standards of military deportment or to comply with minimum standards of physical readiness may result in separation from the service. The physical readiness program, as contained in OPNAVINST 6110.1D, is designed to support and enhance the physical readiness of all personnel, and is an integral part of the Navy's Health Promotion Program. Physical readiness training shall be a complete conditioning program that develops and maintains the flexibility, cardiopulmonary endurance, and muscular strength and endurance needed to perform routine and emergency tasks.

2. All Navy members, except those excused for medical reasons, shall maintain a condition of physical readiness consistent with their duties and the standards of OPNAVINST 6110.1D. The most recent performance on the official physical readiness test (PRT) and body composition assessment must be accurately reflected in the NAVPERS 1610/2, Fitness Report and Counseling Record (E7-06) and the NAVPERS 1616/26, Evaluation Report and Counseling Record (E1 -E6). Certain specialized warfare occupations and training/accession programs may require more stringent standards than those outlined in OPNAVINST6110.ID. Special standards for these occupations may be used as long as they do not compromise the health status of members. Members assigned to U.S. Marine Corps (USMC) commands who pass the USMC physical fitness test, meet the testing requirements of OPNAVINST 6110.1D.

3. Commanders, commanding officers, and officers in charge shall establish and maintain an effective physical fitness program that ensures that all members achieve and maintain a condition of readiness consistent with the standards defined in OPNAVINST6110.ID. Specifically:

a. Each individual is responsible for maintaining an acceptable state of physical readiness at all times. OPNAVINST 6110.1E provides guidance for implementing a basic exercise program. The program shall include a minimum of three exercise sessions per week, approximately 40 minutes in duration. Each physical training period shall include at least 20 minutes continuous aerobic activity, which is required to maintain fitness. Commanders are strongly encouraged to provide opportunity during the normal workday to satisfy this requirement. If members cannot meet the exercise schedule during the workday due to operational requirements, they should exercise regularly during off duty hours.

b. Members shall complete their physical examination, as required by NAVMED P-117, Manual of the Medical Department (MANMED 15-52, 53), before participating in the physical readiness program. Those members diagnosed as having a physically limiting medical condition shall have their required participation determined by an authorized medical department representative (AMDR). An AMDR is a health care provider whose current authorized scope of care, either independent or supervised, includes taking medical histories and performing physical examinations. When an AMDR is not assigned or not otherwise available, members requiring medical clearance shall not participate in the PRT until examined by an AMDR at the first available ship or shore facility.
c. The physical readiness of members shall be tested twice every fiscal year (no less than 4 months apart). A Command Physical Readiness Program may include more frequent testing as a means to motivate members to maintain an acceptable state of physical readiness. However, if more than two tests are given per fiscal year, the command will designate, in advance, which two tests will be used for official administrative and reporting actions (provided the tests are at least 4 months apart).

d. Members not meeting physical readiness standards shall be required to participate in the command-directed physical conditioning program (Level I), which must consist of an exercise component and should also include other Health Promotion Program elements. Members who are not within body fat standards shall participate in Level I conditioning after approval by an AMDR. If members are cleared to take the PRT, they are considered cleared to participate in Level I conditioning.

(1) Members who are not within standards and who meet admission criteria, may be recommended for participation in (D) residential Level III (ARC/ARD)
Obesity/Compulsive Overeating Treatment. Admission criteria for (D) Level III treatment are listed in OPNAVINST 6110.1D.

e. Any member, officer or enlisted, shall be subject to administrative action as outlined in the table in EXHIBIT I, who fails to meet physical readiness standards by:

(1)      not passing the PRT; or

(2)      not measuring within body composition standards; or

(3)      failing to participate, when required, in an official PRT and/or body composition
measurement; or

(4)      any combination of the above conditions.

f. Personnel Support Detachment or Personnel Officers shall ensure, upon permanent
change of station, that OPNAV 6110/2, Risk Factor Screening/Physical Readiness Test Results, reflecting the most recent PRT results, is contained in the service record. All NAVPERS 1070/613, Administrative Remarks (Page 13) entries and Letters of Notification shall also remain a permanent part of the service record (see EXHIBITS 2 - 4 for examples).

4. Medical waivers may be granted only by an AMDR to individuals who are unable to participate in, or safely complete, any or all of the PRT for documented medical conditions. Medical conditions that warrant either a partial or total exemption from the PRT, and/or preclude members from participating in a physical conditioning program, shall be reevaluated before each official PRT. Members who are medically waived from the PRT are not automatically waived from body composition measurements. Members shall participate in both the command-directed physical conditioning program and the PRT, commensurate with their medical qualifications or limitations.

a. A medical waiver may be granted for a portion of the PRT or for the entire PRT. Medical waivers do not reflect failure. Members will be scored "pass" or "fail" for the PRT events in which they participate. If a member passes two of the three graded portions of the PRT, they shall receive a "pass" for that PRT (versus "medically waived"). At the time a waiver for the PRT is granted, the AMDR shall:

(1) Document the condition in the member's health record SF 600, Chronological Record of Medical Care.

(2) Document in the member's SF 600 and OPNAV 6110/2 that a waiver is granted for a
specific portion or for the entire PRT, and specify any other exercise or duty restrictions.
AMDRs shall provide guidance on exercises an individual on limited duty may perform, not
merely exercises that are restricted.

(3) Initiate appropriate treatment and rehabilitations.

(4) Refer the member to a medical officer who has specialty training in the field of the
condition for which the waiver has been granted, if the condition is chronic and not transitory in nature.

(5) Reexamine the member prior to each successive PRT until the condition is resolved
or appropriate medical administrative action is completed.

b. When a medical waiver is granted for any portion of the PRT for three consecutive
official PRT’s, the commanding officer, or officer in charge shall refer the member to a medical specialist who will determine the need for a medical board.

c. Release from a medical waiver shall only be granted by an AMDR.

d. After medical department confirmation of pregnancy, the member shall be exempt
from the physical readiness program, including height/weight and body fat measurements, from the time of diagnosis until 6 months following delivery. Except when contraindicated, the pregnant member shall participate in an exercise program approved by her physician.

5. Any member, officer or enlisted, may be considered for administrative separation who exceeds height/weight and body fat limits at the time of graduation or commissioning from Recruit Training, Officer Candidate School, Officer Indoctrination School, or Naval Reserve Officer Training Corps. Any Naval Academy Midshipman failing the PRT or measuring not within standards will be put on a 6 month conditioning program. If significant progress is not made, the member will be considered for administrative separation at the end of that 6-month program, per COMDTMIDNINST 6110. 1Q.

EXHIBIT 1

The following table summarizes administrative actions for members who acquire PHYSICAL READINESS PROGRAM FAILURES. Refer to OPNAVINST 6110.lE
for clarification and details.

PROGRAM FAILURES
1st	2nd	3rd
Page 13 entries (enlisted or Letter of Notification (LON) (officer)	yes*	yes*	yes*
Mandatory conditioning program	yes	yes	yes
Eligible for frocking	no	no	no
Info BUPERS (Enlisted member’s detailer)	no	no	no
Info BUPERS, Pers-82 (officers)	yes	yes	yes
Process for administrative separation	no	no	yes
Deny permanent change of station transfer	no	yes**	yes
Narrative FITREP/EVAL entry	yes	yes	yes
Deny re-enlistment	no	no	yes
Deny special schools	If currently exceed standards for the school
Delay promotion/advancement	If currently exceed height/weight/ body fat standards or failed last fitness test
Deny recommendation for promotion/advancement	Failed last 2 cycles (D)

*See EXHIBITS 2 - 4 for examples of Page 13 and LON.

**See NAVADMIN 071/94 for details.

EXHIBIT 2
SAMPLE PAGE 13
I, , USN(R) have been advised that I have
accumulated my ____ (1st)(2nd) PHYSICAL READINESS PROGRAM FAILURE
in a 4-year period due to:

___Exceeding height/weight and body fat limits. The date of the official
body composition measurement was . At that time, my percent
body fat was measured at _____; my weight was measured at ;
my height was measured at .

___Failure of the PRT, due to failure of the _____ (run, swim, push-ups,
curl-ups). The date of the official PRT was . My scores were as follows:
Run/Swim ___, Push-ups Curl-ups , Sit-reach ____.

I understand that I am enrolled in the command-directed remedial conditioning program as of the date of this page 13. 1 am required to participate until I pass an official PRT. (D)

I am aware of the administrative and statutory actions for members who exceed body fat limits or fail the PRT. These include, but are not limited to the following:

- I am not eligible for frocking, advancement, or redesignation until I
meet my height/weight/body fat limits or pass a PRT, as appropriate.

- I may be denied PCS transfer or overseas transfer if I am in danger of
being processed for administrative separation within 1 year of the
transfer due to physical readiness program failure (height/weight/body
fat or PRT).

- Transfer to special duty or school will be denied if I do not meet the
PRT program standards for that duty or school.

- I will not be eligible to reenlist if I have three official program failures over
a 4-year period.

- I will be processed for administrative separation from the Navy if I
have three official program failures over a 4-year period.

I understand that before I am processed for administrative separation, if eligible, I may request a waiver from administrative separation processing from the Bureau of Naval Personnel (Pers-601).

I understand that if I am not eligible for a waiver, or a waiver is not granted, I may be eligible for an administrative board, and, if eligible, I may request that such a board be convened.

I understand I have the right to make a statement regarding this Page 13.

Drawn Shape (ignored-not implemented yet) Drawn Shape (ignored-not implemented yet) Drawn Shape (ignored-not implemented yet)          Signature        Witness
Drawn Shape (ignored-not implemented yet) Drawn Shape (ignored-not implemented yet)          Printed Name     Date
         EXHIBIT 3
         SAMPLE PAGE 13
I , _________________________________________________ , USN(R) have been
advised that I have accumulated my third PHYSICAL READINESS PROGRAM
FAILURE in a 4 year period, due to:

___ Exceeding height/weight and body fat limits. The date of the official body composition
measurement was ___. At that time, my percent body fat was measured at ____; my weight
was measured at ____; my height was measured at ____.

___Failure of the PRT, due to failure of the ______(run, swim, push-ups,
curl-ups). The date of the official PRT was ____. My scores were as follows:
         Run ____, Push-ups ____, Curl-Ups ____, Sit-reach ____.
I am aware of the administrative and statutory actions for members who exceed body
fat limits or fails the PRT three times in 4 years. These actions include, but are not limited to, the following:

-        I am not eligible to reenlist or extend in the Navy.

-        I will be processed for administrative separation from the Navy.

I understand that before I am processed for administrative separation, if eligible, I may request a waiver from administrative separation from the Bureau of Naval Personnel (Pers-601).

I understand that if I am not eligible for a waiver or a waiver is not granted, I may be eligible for an administrative board, and that, if eligible, I may request that such a board be convened.



Drawn Shape (ignored-not implemented yet) Drawn Shape (ignored-not implemented yet) Signature Witness


Printed Name Date

EXHIBIT 4

SAMPLE LETTER OF NOTIFICATION

From:    Commanding Officer, (command)
To:      (name, (corps), USN, SSN/designator)

Subj:    LETTER OF NOTIFICATION

Ref- (a) MILPERSMAN 3420440
(b) OPNAVINST 6110.1D

1. Per reference (a), you are advised that you failed to meet physical readiness standards of reference (b). Effective this date, you are enrolled in the command-directed remedial conditioning program. You are required to participate until you pass an official PRT

2. Possible administrative actions for members who exceed height/weight/body fat limits or fail the PRT, include:

a. Ineligible for promotion or redesignation.

b. Not recommended for promotion.

                           ----------------------------------------------------

From: (name, (corps), USN, SSN/designator)To:    Commanding Officer

Subj:    LETTER OF NOTIFICATION

1. I acknowledge receipt of the above letter and understand its contents.


Drawn Shape (ignored-not implemented yet) Member's Signature Date

Copy to:
CO, BUPERS (Pers-82)
D. The Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

“9.2 Propriety of the Discharge

a. A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that:

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b. When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c. The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d. The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.

9.3 Equity of the Discharge

A discharge shall be deemed to be equitable unless:

a. In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration, provided that:

(1) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and

(2) There is substantial doubt that the applicant would have received the same discharge, if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

b. At the time of issuance, the discharge was inconsistent with standards of discipline in the military service of which the applicant was a member.

c. In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:

(1) Quality of service, as evidenced by factors such as:

(a) service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

(b) awards and decorations;

(c) letters of commendation or reprimand;

(d) combat service;

(e) wounds received in action;

(f) records of promotions and demotions;

(g) level of responsibility at which the applicant served;

(h) other acts of merit that may not have resulted in formal recognitions through an award or commendation;

(I) length of service during the service period which is the subject of the discharge review;

(j) prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

(k) convictions by court-martial;

(l) records of nonjudicial punishment;

(m) convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

(n) records of periods of unauthorized absence;

(o) records relating to a discharge in lieu of court-martial.

(2) Capability to serve, as evidenced by factors such as:

(a) Total capabilities. This includes an evaluation of matters such as age, educational level, and aptitude scores. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

(b) Family and personal problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

(c) Arbitrary or capricious actions. This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

(d) Discrimination. This includes unauthorized acts as documented by records or other evidence."

E. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 2 Oct 96), Article 3610300, TYPES OF CHARACTERIZATION OF SERVICE, DESCRIPTIONS OF SEPARATION AND GUIDANCE FOR ASSIGNMENT, states:

1. Types of Characterization of Service or Descriptions of Separation

a. For administrative separations the following characterizations of service are authorized subject to the limitations specified in Articles 3610200 and 3610260 and are described with each reason for processing:

(1) Honorable

(2) General (Under Honorable Conditions)

(3) Other Than Honorable Conditions

b. For separations adjudged by courts-martial the following characterizations of discharge are used and shall not be used for administrative separations:

(1) Bad Conduct Discharge. Result of an approved sentence of a general or special courts-martial.

(2) Dishonorable Discharge. Result of an approved sentence of a General Court-Martial.

c. The following uncharacterized descriptions of separation are authorized subject to the limitations specified in Articles 3610200 and 3610260:

(1) Entry Level Separation (see subparagraph 5a of this article);

(2) Void ( see subparagraph 5b of this article); and

(3) Order of release from the custody and control of the Armed Forces.

2. General Considerations on Characterization of Service:

a. Characterization of service at separation shall be based upon the quality of the member's service, including the reason for separation, subject to the limitations set forth under specific reasons for separation. The quality of service shall be determined in according to standards of acceptable personal conduct and performance of duty for naval personnel. These standards are found in the Uniform Code of Military Justice (UCMJ), directives and regulations issued by the Department of Defense and the Department of the Navy, the Enlisted Performance Evaluation System, and the timehonored customs and traditions of the naval service.

b. The quality of service of a member on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the naval service or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction. Characterization may be based on conduct in the civilian community where that conduct has adversely affected the respondent's service; once the Government has introduced evidence that such conduct did adversely affect the respondent's service, the burden is on the respondent to demonstrate that such conduct did not in fact adversely affect his or her naval service.

c. The reason for separation, and the specific circumstances that form the basis for the separation, as well as the military record, shall be considered on the issue of characterization. Generally, characterization will be based upon the member's performance of duty and conduct throughout the period of their enlistment. However, there are circumstances in which the conduct or performance of duty reflected by a single incident may provide the basis of characterization, such as single acts of misconduct or heroism. Due consideration shall be given to the member's age, length of service, grade, aptitude, physical and mental condition, and the standards of acceptable conduct and performance of duty.

3. Guidelines for Assignment of Characterization

a. Honorable. The Honorable characterization is appropriate when the quality of the member's service has for the most part met acceptable standards of conduct and performance of duty for naval personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. The Honorable characterization is marked by proper personal and military behavior with proficient and industrious performance of duty having due regard to the rate held and the capability of the member concerned.

(1) Court-Martial. During current enlistment, in order to receive a characterization of service as Honorable, the member must have been awarded in his or her performance evaluations a final trait average in performance and conduct of not less than 2.8, and a final trait average of not less than 3.0 in personal behavior; and

(2) A member who would be eligible for a characterization of service as General may receive an Honorable discharge if they have, during a current enlistment been awarded a Medal of Honor, Navy Cross, Distinguished Service Medal, Silver Star Medal, Legion of Merit, Distinguished Flying Cross, Navy and Marine Corps Medal, Bronze Star Medal, Meritorious Service Medal, Air Medal, Joint Service Commendation Medal, Navy Commendation Medal, Navy Achievement Medal, Combat Action Ribbon, Gold Lifesaving Medal, Silver Lifesaving Medal, or an award corresponding to any of these personal decorations awarded by one of the Armed Forces. The above awards constitute elements of a member's record that should be considered meritorious.

b. General ( Under Honorable Conditions). The General characterization is appropriate when service has been honest and faithful but significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's service record. A characterization of service as General is always Under Honorable Conditions. A member would be eligible for a characterization of service as General if, during current enlistment the member has been awarded in his or her enlisted performance evaluations a final trait average in performance and conduct that falls below 2.8, or a final trait average in personal behavior that falls below 3.0.

c. Under Other Than Honorable Conditions. A characterization of service as Other Than Honorable is always Under Other Than Honorable Conditions. A characterization of service as Other Than Honorable is appropriate and may be authorized in the following circumstances, and member has had the opportunity to elect an Administrative Board: (Administrative Board election not applicable if the member is requesting an Other Than Honorable discharge in lieu of trial by court-martial (3630650)).

(1) When the reason for separation is under the mandatory reasons for processing (see Article 3610260.6); or

(2) When the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected from members of the naval service. Examples of such acts or omissions include those punishable by a punitive discharge (see Manual for Courts-Martial, Appendix 12), unauthorized absence (UA) in excess of 30 consecutive days, drug abuse, drug trafficking, the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, and acts or omissions that endanger the security of the United States, the health and welfare of other members of the naval service, or the health and safety of other persons. Commanding officers must provide specific details of offenses in those cases that may warrant a more favorable characterization than that normally authorized.

4. Limitations on Characterization of Service

a. Except as otherwise provided in this article, characterization will be determined solely by the member's service record during the current enlistment or period of service to which the separation pertains, plus any extensions thereof prescribed by law or regulation or effected with the consent of the member.

(1) Activities from prior enlistments or periods of obligated service shall not be considered on the issue of characterization. To the extent that such matters are considered on the issue of retention or separation, the report of an Administrative Board shall reflect that such information was not considered on the issue of characterization; and

(2) Preservice activities may not be considered on the issue of characterization except that in a separation proceeding for the Reason of Defective Enlistments and Inductions due to Fraudulent Entry into the Naval Service (3630100).

b. When members are processed for separation based solely upon the results of a special or general court-martial not imposing a punitive discharge and an Other Than Honorable characterization is warranted, such characterization must be forwarded to the Secretary of the Navy (SECNAV) for approval. If a special or general court-martial awards a punitive discharge, but the punitive discharges suspended, Chief of Naval Personnel (CHNAVPERS) is approving authority.

c. Conduct in the civilian community of a member of the Naval Reserve who is not on active duty or active duty for training may form the basis for characterization as Other Than Honorable only if such conduct directly affects the performance of the member’s military duties; e.g., conduct that results in incarceration, prohibiting a member from participation in drills or being mobilized, etc. Such conduct may form the basis of characterization as General only if such conduct has an adverse impact on the overall effectiveness of the naval service including military morale and efficiency; e.g., discreditable involvement with civilian authorities while not on active duty for training and while wearing the naval uniform without authorization.

d. Drug abuse disclosed through the Voluntary Self-Referral Program may not be considered on the issue of characterization of service as Other Than Honorable except as provided in OPNAVINST 5350.4.

e. Urinalysis test (fitness for duty, and certain service-directed tests) results may not be considered on the issue of characterization of service as Other Than Honorable except as provided in OPNAVINST 5350.4.

5. Uncharacterized Separations. A separation which, due to the short duration of service, is uncharacterized.

a. Entry Level Separation

(1) A separation initiated (i.e., date member is notified of administrative separation processing) while a member is in entry level status (see Article 3610200.1j) will be described as Entry Level Separation except in the following circumstances:

(a) when characterization as Other Than Honorable is authorized under the reasons for separation and is warranted by the circumstances of the case; or

(b) when characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of naval duty where separation is for the reason of: selected changes in service obligation (Article 3620100), convenience of the government (Article 3620200), disability (Article 3620270), and SECNAV approves such characterization on a case-by-case basis.

(2) With respect to administrative matters outside this Manual that require a characterization as Honorable or General, an Entry Level Separation shall be treated as the required characterization. When a member of the Naval Reserve is separated from the Delayed Entry Program with an Entry Level Separation, such separation is “under Honorable conditions”.

b. Void Enlistment or Induction

(1) An enlistment is Void in the following circumstances:

(a) if it was effected without the voluntary consent of a person who has the capacity to understand the significance of enlisting in the Navy including enlistment of a person who is intoxicated or insane at the time of enlistment, or enlistment of a person who was coerced into enlisting by being presented with the option of either enlisting or being subjected to a sentence to confinement by a court of competent jurisdiction.;

(b) if a member test positive for drugs or alcohol on his or her accession into the Navy and is diagnosed as dependent;

(c) if the person is under 17 years of age; or

(d) if the person is a deserter from another military service.

(2) A member whose enlistment or induction is Void shall not receive a discharge certificate, characterization of service at separation, or an Entry Level Separation. The separation shall be described as an order of release from custody or control of the Armed Forces.

(3) Although an enlistment may be Void at its inception, a constructive enlistment arises in the case of a person serving with the Navy who:

(a) submitted voluntarily to naval authority and was not insane, intoxicated, or under 17 years of age at the time;

(b) received military pay or allowances; and

(c) performed military duties.

(4) If a constructive enlistment arises from a Void enlistment within the same term of service, characterization of service or description of separation shall be according to paragraph 3 or subparagraph 5a of this article as appropriate. However, if the enlistment was Void by reason of desertion from another service, the member shall be separated by an order of release from custody and control of the Armed Forces, regardless of any subsequent constructive enlistment, unless SECNAV determines that retention is appropriate.

(5) The occurrence of such a constructive enlistment does not preclude the Navy, in an appropriate case, from either retaining or separating the member on the basis of the circumstances that occasioned the original Void enlistment or upon any other basis for separation provided in this Manual.

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PART V - RATIONALE FOR DECISION


Discussion

         After a thorough review of the records, supporting documents ¹ , facts, and circumstances unique to this case, the Board determined that the reason for discharge was proper and that the characterization of the applicant’s service was equitable. The discharge shall remain : GENERAL (UNDER HONORABLE CONDITIONS)/ WEIGHT CONTROL FAILURE, authority: MILPERSMAN, Article 3620260.

         The applicant's records are incomplete, and some factors on which the discharge was based were not available. Specifically, the CO’s certification that the applicant is militarily unsuitable for retention due to his failure to achieve prescribed physical readiness standards, Page 13 counseling and placing the applicant in the physical readiness program, summary of action taken by the command, applicant’s progress, and counseling offered, Letter of Notification, applicant’s Risk factor Screening and Physical readiness Test results for three official failures, and applicant’s rebuttal or consent to the recommended separation, were not found in the record. The applicant failed to submit substantial credible evidence to rebut the presumption of regularity, therefore, the Board presumed regularity in the conduct of governmental affairs (A, Part IV).

         The applicant was discharged on 961230 with a General (Under Honorable Conditions) for Weight Control Failure (B and C, Part IV). On 930929, the applicant’s enlistment physical had him at 72 inches and 222 pounds (maximum weight is 208 pounds for this height). On 950908, he had NJP for 22 days of UA and FOLO. The Board found the applicant’s discharge to be both proper and equitable (D, Part IV) and concurred with the characterization of General (Under Honorable Conditions) (E, Part IV).

         The applicant introduced no decisional issues for consideration by the Board.

Recorder’s Note:

¹ In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of Applicant’s DD Form 214
Letter to the Board dtd 970421.

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PART VI - INFORMATION FOR THE APPLICANT


Decision

The NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: MILPERSMAN, Article 3620260. The DD Form 214, Block 25 (Separation Authority) should read “MILPERSMAN 3630260” vice “MILPERSMAN 3630250”. The DD Form 214 should be corrected or reissued to reflect the proper Separation Authority (MILPERSMAN 3620260).


If you believe that the decision in your case is unclear, not responsive to the issues that you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809.

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Building 36 Washington Navy Yard
                  901 M Street, SE
                  Washington, D.C. 20374-5023.