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NAVY | DRB | 2004_Navy | ND04-00358
Original file (ND04-00358.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND04-00358

Applicant’s Request
The application for discharge review was received on 20031222. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the traveling panel. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge review Board (NDRB) does not travel; all hearing are held in the Washington, D. C. area. The NDRB also advise that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20040922. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety was found, however, an inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was 4 to 1 that the character of the discharge shall change. The discharge shall change to: HONORABLE/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “Dear DRB:

I joined the U.S. Navy for two main reasons. 1) To serve my country and 2) To earn the G.I. Bill Education benefits.

Reluctantly, I had to leave the U.S. Navy (after almost 3 years of service) because of the findings of a Medical Review Board. I had to leave service because of knee and foot injuries.

I respectfully request a discharge upgrade to Honorable because I believe I was a good sailor. I did not have any conflicts with those I served and I also achieved an E-4 rating.

I had to leave the U.S. Navy because of no fault of my own. Enclosed are documents where I intend to show that my education is important to me and that I plan to continue on with school and succeed. Than you for your considering my discharge upgrade.

Please also be advised that I am willing to appear before a DRB Travel Board to present my case in person.”

Issues submitted by Applicant’s counsel/representative (The American Legion):

 1. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we aver that an administrative error occurred in the characterization assignment of this Applicant’s discharge because she satisfies guidance provided under NAVMILPERSMAN, Art. 1910-304 for a fully honorable discharge. On this basis, we petition the Board’s relief.
 _______________________________________________________________________
In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reflects that this former member maintained satisfactory performance and conduct markings with a final ITA of 3.00 and earned the NDSM. She had no NJPs or adverse counseling entries. Following several medical reviews, a PEB and extended periods of limited duty due to bilateral plantar fascitis and flexible bilateral flatfoot, she was discharged General (Under Honorable Conditions) due to a condition, not a disability as authorized by NAVMILPERSMAN, Art. 1910-120. We note that her CO recommended that she retained on inconus shore duty until her Expiration of Active Obligated Service.

Essentially, as noted on DD Form 293, this Applicant is requesting that her discharge be upgraded because her overall service record supports a fully honorable discharge. She has submitted 3 pages of additional documentation attesting to her good character and educational pursuits for consideration.

Additional comments in support of issue, characterization guidance under NAVMILPERSMAN, Art. 1910-304 states, in part, that a GD will be assigned when “significant negative aspects of the members conduct or performance of duty outweighed positive aspects of the member’s service record”. We note that there are no entries in this Applicant’s SR reflecting negative conduct. Her performance markings with a final ITA of 3.00 meets Navy standards and is well above the 1.99 IRA requiring issuance of a GD. Finally, it stands to reason that her CO would not have requested that she be retained if she did not meet acceptable conduct and performance standards.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from the Applicant, RE: Address Change, dated 21 Jun 2004
Letter from Florida Atlantic University, dated 19 Mar 2003
Letter from Broward Community College, dated 19 Feb 2003
Letter from Broward Community College, dated 14 Oct 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990826 - 990920  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 990921               Date of Discharge: 020829

 Length of Service (years, months, days):

         Active: 02 11 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rate: ABE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION, NOT A DISABILITY, authority: NAVMILPERSMAN, Article 1910-120 (formerly 3620200).

 Chronological Listing of Significant Service Events :

010319:  Medical Evaluation: Applicant diagnosed with Plantar Fasciitis Bilaterally, #72871 and Flexible Flatfoot, #734, recommendation to continue with physical therapy, reorder custom orthotics, and continue with stretching exercises along with anti-infalmmatories. Applicant is not fit for full duty, but fit for limited duty.

071031:  Applicant found Fit to Continue on Active Duty by Physical Evaluation Board.

011228:  Applicant found unsuitable for sea/sub/overseas screening.

020117:  Applicant submits request for administrative separation by reason of other physical or mental conditions not amounting to a physical disability.
020821:  Commanding Officer recommended discharge by reason of convenience of the government on the basis of a. physical or mental conditions not necessarily amounting to disability but affecting potential for continued active duty in the naval service as evidenced by diagnosis of Plantar Fasciitis Bilaterally and Flexible Flatfoot. The Commanding Officer did not recommend a characterization of service. Commanding Officer’s comments: “I recommended the member be retained on inconus shore duty until her Expiration of Active Obligated Service. The request was denied, and Commander, Naval Personnel Command, mandated an administrative separation.

020829:  Applicant discharged with a General (Under Honorable Conditions) by reason of Convenience of the Government, Condition, Not a Disabilty.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020829 with a general (under honorable conditions) for convenience of the government due to a physical or mental condition, not a disability. (A). 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 inequitable (B and C).

Issue 1: The Board found that in the Applicant’s case, the characterization of service should have been the “type warranted by service record.” A review of Applicant’s records indicated an honorable discharge was warranted. Applicant’s performance and behavior marks were above the standard required for an honorable discharge and there was no adverse information that would have warranted any other characterization of his service. Therefore, relief to the character of service is granted.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective
28 Aug 01 until 21 Aug 2002, Article 1910-120 (formerly 3620200), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

B. 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.

C. 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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