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NAVY | DRB | 1999_Navy | ND99-00449
Original file (ND99-00449.rtf) Auto-classification: Denied


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

ex-EW3, USN
Docket No. ND99-00449

Applicant’s Request
The application for discharge review, received 990210, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991213. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, 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 change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PHYSICAL STANDARDS, authority: NAVMILPERSMAN, Article 1910-170 (formerly Article 3620260).

The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority, should read: “MILPERSMAN 1910-170” vice “3620260”. The original DD Form 214 should be corrected or reissued as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I, (Applicant), respectfully request an Honorable discharge upgrade from General (Under Honorable). In reviewing my record of service you will fine one (1) non-judicial punishment for the month of October (1997). I received this NJP as a result of an alcohol related event which then resulted in a verbal confrontation. I did not initiate the confrontation but defended myself due to the public display of belittlement. In the end, the E-6 put the E-4 (myself) on report which resulted in myself serving 30 days restriction, 30 days extra duty, and a forfeiture of $300. I did not receive any alcohol counseling. My discharge itself (RE-3F) was based on the failure of the run portion of the physical readiness test. I strongly feel that my discharge should have no relation to my NJP based on the fact that I had already served the fit punishment. I am confident that you will agree with my previously stated opinion and will judge my military service as the Honorable service I feel that it was. I am proud to have served my country and can only see my NJP as hurting myself and no others. Thank you for your time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930724 - 940704  COG

 Period of Service Under Review :
Date of Enlistment: 940705               Date of Discharge: 980504

 Length of Service (years, months, days):

         Active: 03 10 00
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 19                        AFQT: 89

 Highest Rate: EW3 (E-4)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.4 (5)     Behavior: 2.2 (5)                 OTA: 2.93 (5.0 scale)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, MUC

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PHYSICAL STANDARDS, authority: NAVMILPERSMAN, Article 1910-170 (formerly Article 3620260).

 Chronological Listing of Significant Service Events :

961204:  Counseling: Applicant advised that he failed the physical readiness test for the first time by failing the official PRT and placed on the command’s sponsored physical conditioning program. Sources of assistance included. Advised if not within standards three times in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).
970410:  Retention Warning: Advised of deficiency (resist being apprehended by an armed force policeman and disorderly conduct - drunkenness), notified of corrective actions and assistance available and discharge warning issued.

970520:  Counseling: Applicant advised that he failed the physical readiness test for the second time by failing the run of the official PRT and placed on the command’s sponsored physical conditioning program. Sources of assistance included. Advised if not within standards three times in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

971003:  NJP for violation of UCMJ, Article 92: failure to obey order or regulation.
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
971003:  Retention Warning: Advised of deficiency (failure to obey order or regulation), notified of corrective actions and assistance available and discharge warning issued.

971201:  Counseling: Applicant advised that he failed the physical readiness test for the third time by failing the run of the official PRT and placed on the command’s sponsored physical conditioning program. Sources of assistance included. Advised if not within standards three times in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

980427:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of weight control failure. as evidenced by failure to successfully pass the physical readiness test three times, and misconduct due to commission of a serious offense as evidenced by CO's NJP held on 3 Oct 97.
980427:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980513:  Commanding officer (USS CONONADO) advised BUPERS that the applicant's discharge was approved and the applicant was discharged with general (under honorable conditions) by reason of physical readiness test failure due failure to successfully pass the physical readiness test three times and misconduct due to commission of a serious offense as evidenced by non-judicial punishment held on
3 Oct 97. Commanding officer’s comments (verbatim): "Having reviewed all documentation, I have determined that the reason for separation processing, characterization of service and all other circumstances in this case fall within the provisions of MILPERSMAN Chapter 36. EW3 (Applicant) was separated on 4 May 1998 with a General Discharge."

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980504 with a general (under honorable conditions) for failure of the physical readiness test due to not meeting the prescribed physical readiness standards (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicant’s issue the NDRB determined that the basis for the discharge was the failure of the applicant to pass the physical readiness test 3 times. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of nonjudicial punishment, negating an honorable discharge. Relief denied.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E). The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 12 Dec 97 until 31 Aug 98, Article 1910-170, SEPARATION BY REASON OF WEIGHT CONTROL AND/OR PHYSICAL READINESS TEST FAILURE .

B. Naval Military Personnel Manual, (NAVPERS 15560C, Change 18, effective
12 Dec 97 until present, Article 6110-010, HEALTH AND PHYSICAL READINESS PROGRAM .

C. 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.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
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 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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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