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NAVY | DRB | 2002_Navy | ND02-01050
Original file (ND02-01050.rtf) Auto-classification: Denied


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

ex-SH3, USN
Docket No. ND02-01050

Applicant’s Request
The application for discharge review, received 020722, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030424. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the Applicant’s service. The Board’s vote was four to one that the character of the discharge shall change. The discharge shall change to: HONORABLE/WEIGHT CONTROL FAILURE, authority: NAVMILPERSMAN, Article 3620260.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. No medical record to indicate physical exam to determine if Applicant inability to loose weight was medically connected.

2. If Applicant was physically unfit, why was he allowed to re-enlist 1 mo. 7 days prior to discharge?

3. Applicant's prior 6 yr. tour was entirely Honorable with many Commendations, Promotions & letters of Appreciation from Commanding Officers. Disability incurred in line of duty.

4. According to medical records in my possession no attempt was made to determine if a medical problem contributed to inability to lose weight. Also medical problems at time were no considered.

 5. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 11/12/02 and the following comments are hereby submitted.

We concur with the Applicant's contention that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Three pages from Applicant's service record
Letter to Applicant from Navy Personnel Command, dated May 22, 2002
Letter to Applicant from Board for Correction of Naval Records, dated February 7, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: USNR              900928 - 920701  HON
 USNR             920702 - 960223  HON
Period of Service Under Review :
Date of Enlistment: 960224               Date of Discharge: 961127

 Length of Service (years, months, days):

         Active: 00 09 24
         Inactive: None

 Age at Entry: 25                          Years Contracted: 3

 Education Level: 12                        AFQT: 35

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM (2), NCM, SSDR (2), SASM (2), GCM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

961101:  Counseling: Applicant advised that he had accumulated the third physical readiness program failure in a 4 year period by failing the height/weight/body fat, you will be processed for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

961113:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of weight control failure as evidenced by your three Physical Readiness Test failures within a four year period.
961113:  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.

961118:  Report of Medical Examination: Weight: 220.

961202:  Commanding Officer directed discharge with a general (under honorable conditions) by reason of weight control failure due to not meeting the prescribed physical readiness standards. Commanding Officer’s comments (verbatim): [Petty Officer S_ (Applicant) has been afforded every opportunity through effective leadership, counseling and training to assist him in his problems he faced with the Navy's physical readiness tests. Although his performance has been average, his failure to meet the Navy's requirements regarding physical fitness is considered unsuitable for retention.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 961127 with a discharge characterization of general (under honorable conditions) for weight control failure (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 but not equitable (D and E).

The Board found that in the Applicant’s case, the characterization of service should have been the “type warranted by service record.” Even though the Applicant waived all of his rights to contest the characterization of service, a review of the Applicant’s records indicated an honorable discharge was warranted anyway. After a review of what appeared to be a thorough and complete record, the Board did not find any adverse information that would have warranted a less favorable characterization. The Board additionally noted the Applicant was suffering from the recent loss of a family member that may have contributed to his sudden weight gain. Otherwise, the Board was impressed with the Applicant’s service record. The Applicant earned very good evaluations and as a Seaman Recruit received a Navy Commendation Medal. In two other enlistments, the Applicant served honorably and faithfully and therefore earned honorable discharges. Therefore, relief is granted. The NDRB also noted an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous six years of honorable service.


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 “ afls14.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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