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NAVY | DRB | 2004_Navy | ND04-00539
Original file (ND04-00539.rtf) Auto-classification: Denied


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


ex-FR, USN
Docket No. ND04-00539

Applicant’s Request
The application for discharge review was received on 20040217. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to COG. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

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 or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character and reason for separation shall not change. The separation shall remain: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:
1. “REQUEST A CHANGE OF MY RE CODE TO ALLOW MY RE-ENTRY IN ACTIVE MILITARY SERVICE.”

 2. “I AM CURRENTLY EMPLOYED AT CHARLOTTE PIPE & FOUNDRY – PLASTICS DIVISION, MONROE, NC WORKING 12 HOUR SHIFTS WITHOUT ANY ISSUE RELATED TO THE RETAINED ORTHOPEDIC DEVICE. I FEEL THAT I AM MORE THAN PHYSICALLY ABLE TO PERFORM ACTIVE MILITARY DUTY AND I REQUEST THE CHANGE IN PRIOR MILITARY RECORDS TO ALLOW ME THE OPPORTUNITY TO DO SO.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Commanding Officer letter, dated 8 Nov 2002 (2 pages)
 Notification of Rights, dated 7 Nov 2002 (2 pages)
 Medical Advisor letter dated 9 Jul 2002
Pages from Applicant’s medical record (3 pages)
 Letter from D_ H. T_, Asst. Service Officer, Union County Veteran’s Service Office, dated 22 Jan 2004.
 Department of Veteran’s Affairs Authorization and Release form, undated
Medical Record, Arthritis Clinic and Carolina Bone & Joint, dated 29 May 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     020712 - 021022  COG
          Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 021023               Date of Discharge: 021115

 Length of Service (years, months, days):
         Active: 00 00 23
          Inactive: None
Age at Entry: 22                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 34
Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMA*                 Behavior: NMA                      OTA: NMA

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None
* No Marks Assigned
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

 Chronological Listing of Significant Service Events :
020709:  Medical evaluation: Based on a review of available medical information, subject applicant DOES NOT meet established physical standards (DoD 6130.3 & .4) due to Retained Hardware Left lower leg. Waiver of the physical standards IS recommended.
021028:  Medical evaluation: Medical evaluation: Patient states pain in right leg. Patient states rod in right leg. Patient states it hurts just to walk.
021105:  Medical evaluation: Right leg pain due to retained hardware. Too painful to run and complete military duty. Pain due to presence of nail, plate, or rod. This condition is NOT correctable to meet Navy standards.
021107:  Applicant notified of intended recommendation for discharge with a least favorable characterization of service as general (under honorable conditions) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by retained orthopedic device.
021107:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
021108:  Commanding Officer, Recruit Training Command, directed the Applicant's discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment as evidence by retained orthopedic device.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021115 with an uncharacterized service for defective enlistment and induction due to erroneous enlistment (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).
Issue 1: The Applicant requests a change in his Narrative Reason for Separation to convenience of the government (COG). Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity occurred during the Applicant’s enlistment. The separation process was in strict compliance with the Naval Military Personnel Manual. The applicant was processed for separation by reason of defective enlistment, erroneous enlistment due to a retained orthopedic device that was interfering with the performance of the Applicant’s military duties. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)
A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-130 (formerly 3620280), SEPARATION BY REASON OF DEFECTIVE ENLISTMENTS 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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