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NAVY | DRB | 2001_Navy | ND01-01181
Original file (ND01-01181.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND01-01181

Applicant’s Request
The application for discharge review, received 010917, 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 020604. 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: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS, authority: NAVMILPERSMAN, Article 3620280.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

 1. I DID NOT HAVE A LEFT KNEE INJURY WHEN I ENLISTED IN THE NAVY. ALL INFORMATION CONCERNING MY RIGHT KNEE WAS AVAILABLE TO THE NAVY RECRUITER AND I WAS TOLD THERE WAS NO PROBLEM. COPIES OF MY MEDICAL CONDITION PRIOR TO SERVICE CONCERNING MY RIGHT KNEE ARE AVAILABLE IN MY NAVY SERVICE MEDICAL RECORDS. I EXPECTED TO BE ABLE TO COMPLETE MY SERVICE WITHOUT ANY PROBLEM PER MY NAVY RECRUITER. I HAVE NOW RECEIVED TREATMENT FOR MY LEFT KNEE THROUGH THE VA. I CAN NOT RECEIVE ANY OTHER CARE OR BENEFITS FROM THE VA UNLESS MY DISCHARGE IS UPGRADED. I TRIED TO SERVE MY COUNTRY BUT WAS DENIED THE OPPORTUNITY THROUGH NO FAULT OF MY OWN. I BELIEVE I SHOULD HAVE A CHARACTER OF SERVICE SEPARATION WHICH WOULD ENTITLE ME TO ADDITIONAL VA BENEFITS.
Submitted by DAV:

 2. 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 support the contentions as set forth by the applicant, in his request that he be given the opportunity to change the narrative of his character of service to reflect a Honorable Discharge.

The (FSM) joined the United States Naval Service on October 25 1993 until December 01 1993 where he served without any non- judicial punishments. During his short military tenure he was assigned to a recruit training regiment where he was required to perform and complete the required basic requirements of a navy recruit. (FSM) states now that his knee injury was such that he was separated from recruit training, since he failed to complete and could not perform the physical requirements of the training.

The (FSM) seeks now to up-grade his discharge in an effort receive benefits for his knee that was aggravated by recruit training. The (FSM) seeks to receive medical benefits and other veterans entitlements due to his service aggravated injured knee. The (FSM) sincerely hopes that by respectfully requesting and being granted a Honorable Discharge from the Navy, he feels this is a matter of Honor and Respect. The (FSM) also states he had always tried to achieve Honor and Respect while on recruit training duty in the Naval Service. We respectfully request that the (FSM) be given complete and duly consideration by the board. We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the general character of his discharge to Honorable.

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
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Dept of Veterans Affairs, Cleveland, OH letter of 6/15/02, concerning applicant's medical condition
 Dept of Veterans Affairs, Cleveland, OH Rating Decision dtd Sep 22, 1997
 Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     930923 - 931024  COG
Period of Service Under Review :
Date of Enlistment: 931025               Date of Discharge: 931201

 Length of Service (years, months, days):
         Active: 00 01 07
          Inactive: None
Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 32
Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*        Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 *No Marks Found in service record.
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS, authority: NAVMILPERSMAN, Article 3620280.

 Chronological Listing of Significant Service Events :
930917:  Entrance Medical Exam for Enlistment: Applicant advised of surgery to the right knee in 9/89, marked "yes" to swollen or painful joints and to broken bones.
931117:  Naval Hospital Branch Clinic, RTC, Great Lakes: Follow-up concerning right knee, not doing much better. Member has diagnosed chondromalacia patella of knee, entry level medical separation, continue meds and crutches.
931117:  Recruit Medical Eval: Recommend Entry Level Medical Separation due to diagnosis Chondromalacia Patella Right Knee, existed prior to entry, unable to perform military duties.
931119:  Applicant notified of intended recommendation for discharge with an uncharacterized service or with least favorable characterization of general (under honorable conditions) by reason of defective enlistment and induction due erroneous enlistment as evidenced by chondromalacia patellae right knee.
931119:  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. Applicant did not object to separation.
931126:  CO RTC, Great Lakes, IL directed the applicant's discharge with an Entry Level Separation (uncharacterized service) and directed an RE-4 reenlistment code.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931201 with an uncharacterized service for defective enlistment and induction due to failed medical/physical procurement 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).
Issues 1 and 2. By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “Entry Level Separation” unless there were unusual circumstances regarding performance or conduct which would merit an “honorable” characterization. The applicant’s service record did not contain any unusual circumstances during his less than two months in the military to warrant a change of discharge to “honorable.” The Board found that the alleged statements made by the recruiter to the applicant, and the applicant’s desire to serve his country does not mitigate the applicant’s characterization of service for failing physical procurement standards. Relief denied.
The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The applicant’s discharge characterization accurately reflects his service to his country. 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. 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 5, effective 05 Mar 93 until 19 Dec 93, Article 3620280, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS – ERRONEOUS ENLISTMENT.

B. 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.

C. 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.

D. 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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