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NAVY | DRB | 2003_Navy | ND03-00245
Original file (ND03-00245.rtf) Auto-classification: Denied


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

ex-AT1, USN
Docket No. ND03-00245

Applicant’s Request
The application for discharge review, received 20021203, requested that the characterization of service on the discharge be changed to honorable and the reason changed to Retired. 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 20031031. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety was discovered. However, an inequity in the characterization of the Applicant’s service and the reason for discharge was discovered by the NDRB. The Board’s vote was unanimous that the character and reason for discharge shall change. The discharge shall change to: HONORABLE /SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164 (formerly Article 3630900). The separation code will change to “JFF.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “I believe that I was unjustly discharged from the Navy for a condition that I had no control over.

After my discharge for weight control failure in Dec. 1998, I home-based in Kentucky while looking for employment. I moved to Cookeville, TN in June 1999. I first noticed that I had a vision problem when I went to get a TN driver’s license in July of 1999. After visits to Dr. F_ V_, my family doctor, Dr. J_ E_, an Ophthalmologist, Dr. L_ R_-C_, a Neurosurgeon, and Dr. J_ T_, an Endocrinologist, I was diagnosed as having a very large Pituitary tumor that had been present and enlarging for quite some time.

I had surgery in June 2000 to remove the tumor. The tumor had the effect of altering the normal function of my pituitary gland. I have been on several medications since the operation to try and correct my hormonal imbalance.

In the course of discussing my condition with my physicians I realized that I was unjustly discharged from the Navy. The tumor was affecting my ability to lose and keep off my excess weight.

Shortly after my discharge I believe that the Navy changed their policy about separating people with weight control problems. I feel that since the Navy did not properly diagnose my condition, I should be entitled to an early retirement, with full benefits, under the TERA provisions.

If not for the Navy’s inability to properly diagnose my problem I would be getting ready to retire with a full 20 years of active duty service. An early retirement, retroactive to the date of my discharge, with a little over 16 years of active duty service seems like the just thing in this instance.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Cumberland Neurosurgery, Dr. L_ R. R_-C_, M. D., ltr dtd June 6, 2001
J_ T_, M.D., F.A.C.E. undtd letter
Cumberland Neurological and Spinal Surgery, LLC, dtd May 11, 2000
Letter from Applicant, dtd April 15, 2003
CO’s Recommendation for Discharge and Waiver of Rights and Privileges (6 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     820802 – 820817          COG
         Active: USN                        820818 - 871129  HON
                                             871130 – 930630  HON
                                             930701 – 960617  HON

 Period of Service Under Review :
Date of Enlistment: 960618               Date of Discharge: 981221

 Length of Service (years, months, days):

         Active: 02 06 04
         Inactive: None

 Age at Entry: 44                          Years Contracted: 3 (5 months extension)

 Education Level: 12                        AFQT: 95

 Highest Rate: AT1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 1.67 (3)                OTA: 3.24 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (4), NDSM, SSDR (4), AFEM, N&MCOSR(5), LoC, MUC (3), Battle “E” Ribbon (2), JMUC, CGMUC (w/OP “O”) (2), Pistol Expert Medal, Rifle Marksman Ribbon, Air Force Organization Excellence Award (2)

 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 :

9604__:  Counseling: Applicant advised that he failed to meet the readiness standards by measuring above the 22% body fat percentage. Current measurements: HT – 70.5 inches, WT – 235 pounds and BF% - 26. Acknowledged this is first measurement out of standards since May 1990. Enrolled in the Command’s Remedial Exercise Program and advised of possible processing for administrative separation.
960513:  Jacksonville Wellness Center: Reason for request: 44 year old male low cholesterol, poor diet. Exceeds Navy HT/WT and body fat standards.
         Provisional Diagnoses: Overweight.
         Symptom: Pt seeking information on nutrition and weight management.
         Age: 44 Ht: 70.5” WT: 235# BF: 26% No Tobacco; No ETOH; No known medical problems, Family History: Cardiovascular Disease, Father died at age 42; Overweight: Father; pt has experienced wt programs since adolescence. Highest WT: 240, last year; desired WT: 185#. Pt restricted cal/carb/fat in past to lose wt. Eating Pattern: Pt skips breakfast daily; Lunch: burger & fries. Snacks: popcorn, potato chips.
Fruits: 0/day; Veg: 2/day; Fast Food: 3 times week; No water; No exercise during past month. Spouse and chain of command are supportive for wt loss. He is motivated to lose wt due to father’s early death from heart disease; he is concerned for personal health. Reviewed nutrition manual including food guide pyramid. Discussed strategies to increase fruits and vegetables as snacks and to decrease high calorie/fat snacks. Pt reports he is beginning aerobics classes with command 3 – 4 times per week. Discussed eating high fiber foods including whole grains to feel full. Pt states understanding of food guide pyramid, documenting food intake. Distributed nutrition manual, cholesterol guide, activity pyramid fat/calorie guide to Pt. Pt stated he feels confident with program and will document food logs. He will attend nutrition classes Jun 96 and is encouraged to attend wt management support groups, when possible.
Assessment: Nutrition knowledge deficit; poor eating & exercise habits.
Plan: Document food intake; follow cal/fat/exercise recommendation; attend nutrition classes Jun 96.
960618:  Reenlisted for a term of three years at NAS Jacksonville.

 961018:  Evaluation Report & Counseling Record (From 95DEC01 to 96OCT18) states: “Fails to meet the Navy’s Physical Readiness standards due to failure to be within body fat standards. Member is showing progress in the command remedial PRT program.”
970203:  Tripler Army Medical Center, PRT Screen: Pt is a 45 year old active duty white male here for PRT screening. Last 5 year physical exam done on 2 May 96 and it was normal except for increase in body weight with a body fat % of 26%. He also had a normal EKG at that time. No history of chest pain, shortness of breath, or weakness. No history of hypertension or elevated cholesterol. Non-smoker. Positive family history of coronary artery disease in father. No other complaints or problems.
         Assessment/Plan:
1. Out of standards for body fat.
          - cleared to participate in command directed PT program
         - exercise
         - reduce calories (fat in diet)
         - weight management classes here at Branch Medical Clinic
         - return to counseling as necessary
970602:  Tripler Army Medical Center, Eval For Lean Program: 45 year old active duty white male presents for evaluation prior to participation in the TAMC Level III Lean Program. Pt is 29 lbs overweight right now and out of body fat standards. He has been participating in remedial PRT without any chest pain, pressure, or shortness of breath. Slight occasional back pain. No radiculopathy. Slight left instep pain also.
                  Assessment/Plan:
1. Overweight/Out of body fat standards.
                   - cleared for participation in the TAMC Level III Lean Program
                  - physical exam up to date
                  - TSH, CBC, testing lipid panel, clear 10, LFTS drawn today
                  - continue remedial PRT
                  - return as necessary
                  2. Left foot instep pain.
                  -consult to brace shop for arch supports

970717:  Tripler Army Medical Center, Nutrition Clinic: 45 year old male with Healthy Heart Nutrition Appointment. Symptom – Pt stated history of active duty weight control. HT – 71”, WT – 234#, large frame. Pt attended cholesterol class which provided information on coronary risk factors and diet low in fat/cholesterol/sodium, high fruits and vegetables; exercise was encouraged at discretion of PMD; encouraged weight loss. Handouts on blood cholesterol, low fat diet and low sodium diet were given.
         Assessment: Pt participated in the class.
         Plan: Follow up as necessary; pt to schedule through clinical dietetics. Goal of treatment: 1. Maintain lipid levels at normal range. 2. Attain/
         Maintain appropriate weight.

971115:  Evaluation Report & Counseling Record (From 96OCT19 to 97NOV15) stated: “Striving to meet Navy’s mandatory PRT standards.”

981115:  Evaluation Report & Counseling Record (From 97NOV16 to 98NOV15) stated: “Not recommended for advancement. An excellent sailor in all other respects, Petty Officer B_ (Applicant) has failed to meet PRT weight standards.”

981021:  Separation Physical Exam listed HT – 71 inches, WT – 235 pounds, found Applicant qualified for separation.

981210:  Applicant advised of 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. [PROVIDED BY THE APPLICANT.]

981221:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of weight control failure. [PARTIAL LETTER, PROVIDED BY THE APPLICANT.]

981221:  DD Form 214: Applicant discharged under honorable conditions (general) by reason of weight control failure.

[ADMIN DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981221 under honorable conditions (general) 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 but not equitable (D and E).

Issue 1. The Applicant’s service record contains no derogatory information regarding his final enlistment other than his failure to maintain directed weight standards. The Board found that the documentation provided by the Applicant supports his assertion that his inability to maintain weight standards was aggravated by a medical condition. Therefore, the Applicant’s service during the enlistment under review is equitably characterized as honorable. Relief to the characterization of service is granted.

Under current standards, the Board found that the Applicant would not have been administratively separated by reason of weight control failure. Therefore the Board found that the Applicant’s narrative reason for separation should be changed to secretarial authority. Relief to the narrative reason for separation is granted.

 The Board’s regulations limit its review to a determination on the propriety and equity of the discharge. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. The Board has no authority to grant reinstatement, reenlistment, or any benefits related to retirement or early retirement. The Board for Correction of Naval Records has the authority to act on requests for reenlistment or early retirement. Relief on this issue is denied.


 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 01 Sep 98 until 5 Dec 01, MILPERSMAN 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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