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NAVY | DRB | 2003_Navy | ND03-00236
Original file (ND03-00236.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND03-00236

Applicant’s Request
The application for discharge review, received 20021122, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to Medical Conditions. 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 20031010. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the reason for discharge and 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, stated

No issues were submitted by the Applicant.

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):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950530               Date of Discharge: 950921

 Length of Service (years, months, days):

         Active: 00 02 11
         Inactive: 00 01 12

 Age at Entry: 21                          Years Contracted: 8

 Education Level: 12                        AFQT: 58

 Highest Rate: AR

 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 the 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 :
950711:  Commenced active duty.

 950822:  Laboratory, Naval Hospital Great Lakes: Applicant Positive on HIV-1 Antibody Test.
950914:  Branch Medical Clinic, Naval Hospital Great Lakes: 21 year old Seaman Recruit with possible positive HIV. In medical hold. Will repeat test now. If positive, recommend Entry Level Medical Separation.

950914:  Branch Medical Clinic, Naval Hospital Great Lakes: Entry Level Medical Separation.
         Diagnosis: HIV Disease, EPTE. Pt was not hospitalized and instructed to follow-up civilian MD.

950914:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to erroneous enlistment as evidenced by HIV virus. Advised least favorable characterization of service would be general (under honorable conditions).

950914:  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.
950918:  Commanding Officer directed an uncharacterized discharge by reason of erroneous enlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950921 with 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).

The Applicant introduced no decisional issues for consideration by the Board. By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” 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 three months in the military to warrant a change of discharge. With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization. Relief denied.

The Applicant was diagnosed as positive for the HIV virus. This condition did not meet the medical procurement standards for enlistment. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief not warranted.

The Applicant 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. 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, Change 9, effective 22 Jul 94 until 02 Oct 96, Article 3620280, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENT 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 " 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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