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NAVY | DRB | 2001_Navy | ND01-00790
Original file (ND01-00790.rtf) Auto-classification: Denied


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

ex-SN, USNR
Docket No. ND01-00790

Applicant’s Request
The application for discharge review, received 010517, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214. 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 not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PHYSICAL STANDARDS, authority: NAVMILPERSMAN, Article 3620260.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I was released from the navy due to not being within physical standards. Reason for this was due to an injury that I received while on active duty. I am now receiving compensation for the injury received while in the navy. The reason that I went into the armed forces was to receive the GI Bill but with the discharge that I received will not let me. I plead with you to review my records and change my discharge to an honorable. Thank your for your time.

Submitted by DAV:
 2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the applicant of an upgrade of his General, Under Honorable Conditions discharge, to that of Honorable, allowing for equitable relief.

The records reflect the FSM served in the United States Navy from March 14, 1994 to July 23, 1997, with a narrative reason for separation as Physical Standards. This reflects a 3 year, 4 month period of active service with the FSM listing no specific issues, but the evidentiary record reflects good to average performance marks. Therefore the length and quality of that service must be considered. In that the FSM may not have been able to meet the physical standards of the Navy, but the rest of his service is believed to have been good service entitling him to an Honorable discharge.

In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that 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 that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.



Documentation

Only the service record was reviewed, as the medical record was unavailable. 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: None

 Period of Service Under Review :
Date of Enlistment: 940304               Date of Discharge: 970723

 Length of Service (years, months, days):

         Active: 03 04 10
         Inactive: 00 00 10

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 14                        AFQT: 65

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (2)     Behavior: 3.2 (2)                 OTA: 3.2 (4.0 evals)
                  3.0 (1)                  2.0 (1)                           3.0 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR(2), .45 CAL PISTOL MARKSMAN

 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 3620260.

 Chronological Listing of Significant Service Events :

940304:  Enlistment Physical Examination Report height as 71¼ inches, weight as 219 pounds, build as heavy, body fat as 19%. Max weight - 231.

940314:  Commenced active duty for 36 months under the Seaman Apprenticeship Program.

960506:  Retention Warning: Counseled for the deficiency in performance (driving under the influence), notified of corrective actions, provided assistance, and warned of possible discharge action.

 970720:  Separation Physical Exam Report height as 72 inches, weight as 250 pounds, build as heavy. History of herniated disk L5 - S1 - asymptomatic at present - been at back school.
[ADMIN DISCHARGE PACKAGE NOT IN SERVICE RECORD AND APPLICANT DID NOT HAVE COPY.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970323 with a general (under honorable conditions) by reason of physical standard (failed minimum prescribed physical readiness (PRT) standards (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issues 1 and 2. The Board has no authority to upgrade characterizations of service for the sole purpose of enhancing the applicant’s opportunity to receive veteran’s benefits. Despite the fact that the applicant’s performance evaluation average marks were adequate to warrant an honorable discharge, the Board found that the applicant’s retention warning received on 960506 was sufficient adverse material for the separation authority to award the applicant a discharge under honorable conditions (general). The discharge was proper and equitable.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. 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.

B. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
 03 Oct 96 until 11 Dec 97 Article 3420440, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.af.mil ”.
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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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