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NAVY | DRB | 2002_Navy | ND02-01157
Original file (ND02-01157.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND02-01157

Applicant’s Request
The application for discharge review, received 020814, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Detroit, MI. The Applicant requested a documentary record discharge review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030501. 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)/WEIGHT CONTROL FAILURE, authority: NAVMILPERSMAN, Article 1910-170 (formerly Article 3620260).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. The veteran served in the United States Navy three years, two months and 20 days. During that time frame he was never disciplined for any mis-conduct. He served honorably and in fact was even awarded a letter of commendation from his ships captain. Despite the fact that he never violated any rules of conduct the veteran received a general discharge under honorable conditions as a result of the fact that he was unable to successfully satisfy all of the requirements of the Navy physical readiness test, which specified that his body fat not exceed 22% the veteran's body fat was 23%, which put him over the accepted limits.

The veteran respectfully requests that his discharge be upgraded to an honorable. Although he qualifies for veteran's benefits with his current discharge he believes that the fact that his discharge is less than an honorable has negatively impacted his career opportunities. In addition, he is proud of his service to his country and is embarrassed by the stigma attached to a discharge of less than honorable. Please give his request for an upgrade every consideration.

2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 3/18/03 and the following comments are hereby submitted: Based on the available records that we reviewed, we believe there are issues of equity and propriety. We could not find in the records where the Applicant was ever counsel regarding his weight, neither were there any evidence of any disciplinary action against him during his 3 years of service. We fully concur with his 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 upgrading his discharge to Honorable.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant 's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940620 - 950614  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950615                        Date of Discharge: 980904

 Length of Service (years, months, days):

         Active: 03 02 20
         Inactive: None

 Age at Entry: 17 Parent Consent                  Years Contracted: 4

 Education Level: 12                                 AFQT: 52

 Highest Rate: Not found in service record

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BER, SSDR (2), JMUA, HSM

 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 1910-170 (formerly Article 3620260).

 Chronological Listing of Significant Service Events :

940620:  Enlistment Report of Medical Examination: Weight: 186 lbs.

 980901:  Separation R eport of Medical Examination: Weight: 227 lbs.

980904:  DD Form 214 Applicant discharged with a discharge characterization of general (under honorable conditions) by reason of weight control failure.

Incomplete record. Discharge package not available.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980904 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 equitable (D and E).

 Issue s 1 & 2: The Applicant states he served honorably and that during his enlistment he was never disciplined for any misconduct, additionally he states he was awarded a Letter of Commendation. Furthermore, his representative contends that the Applicant was not provided with the appropriate counseling regarding his weight. Prior to the NDRB record review, the Applicant was informed that the documentation to support his administrative discharge was not filed with his service record, and the Board was unable to obtain this information from other sources. The Board requested the Applicant provide credible evidence that the contested discharge decision was wrong or unfair in order for the Applicant to overcome the presumption of regularity. The Applicant did not provide any documentation to assist the NDRB in making a determination other than to presume regularity that the discharge was proper and equitable as issued. Request denied.

The following is provided for the Applicant ’ s information: T here 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



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 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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