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NAVY | DRB | 2005_Navy | ND0501243
Original file (ND0501243.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-EN3, USN
Docket No. ND05-01243

Applicant’s Request
The application for discharge review was received on 20050725. The Applicant requested a documentary discharge review and that her characterization of service received at the time of discharge be changed to honorable. No representative was designated on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060224. After a thorough review of all available 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 3 – 2 that the characterization of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of weight control failure.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Applicant’s issues, as stated on the application:

“I J_ L. C_(Applicant) was discharged from the United States Navy after over 12 years of active duty service due to my weight issues. Administrative discharge with separation pay with General Under Honorable Conditions. Prior to my final discharge I received 2 Honorable discharges and am entitled to my final Honorable discharge. Please review and correct this issue so that I may use the educational benefits I am entitled to.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 issued 96 Mar 06
Applicant’s DD Form 214 issued 88 Jan 07

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19830104 - 19830807      COG
          Active: USN      19830808 - 19880107      HON
                  USN      19880108 – 19920218      HON
Period of Service Under Review :
Date of Enlistment: 19920219             Date of Discharge: 19960306

 Length of Service (years, months, days):

         Active: 04 00 16         (Total active service: 12 06 29)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 26

 Years Contracted: 6

 Education Level: 12                                 AFQT: 78

 Highest Rate: EN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (3)     Behavior: 3.9 (3)        OTA: 3.87 (3)    (4.0 Max)
Performance: 3.0 (1)     Behavior: 1.0 (1)        OTA: 2 .14 (1)    (5.0 Max)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Battle “E” Ribbon, Meritorious Unit Commendation, National Defense Service Medal, Second Good Conduct Award for period ending 93JAN18, Second Overseas Service Ribbon


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

(GENERAL) UNDER HONORABLE CONDITIONS/ WEIGHT CONTROL FAILURE, authority: MILPERSMAN, Article 3620260.
Chronological Listing of Significant Service Events :

920219:  Reenlisted this date for a term of 6 years.
930729:  Administrative Remarks from Naval Alcohol Rehabilitation Center, Jacksonville, Fl to EN 2 C_ (Applicant). “You are notified that you have completed a program of rehabilitation for obesity at the Naval Alcohol Rehabilitation Center, Jacksonville, Florida, but you are out of Navy standards. Should you fail to complete all aspects of your aftercare program or fail to demonstrate consistent progress towards compliance with Navy standards, it is recommended you be processed for administrative separation from the Navy.
931108:  Administrative remarks from Commanding Officer, Naval Submarine Base, Kings Bay, GA to EN2 C_ (Applicant). Applicant advised that she was above the Navy’s minimum body fat percentage of 30% and her of her enrollment in the command’s physical conditioning program. Furthermore advised that failure to show significant progress towards meeting Navy’s body fat standards, failure to achieve body fat standards during the 12-month aftercare period, or failure to maintain standards thereafter shall result in consideration for separation from the naval service.

931108:  Administrative remarks from Commanding Officer, Naval Submarine Base, Kings Bay, GA to EN2 C_ (Applicant). Applicant advised that she was above the Navy’s minimum body fat percentage of 30% and notified of her enrollment the commands physical conditioning program. Furthermore, advised of administrative actions including separation that may result from continued failure of body fat standards.

940830:  Medical Department, Naval SUBASE Kings Bay, GA: Request for recommendation of waiver, per BUPER MSG 251927Z Aug 94. SNM has been in level III and since then has lost and gained weight. Service member has been trying to lose weight with poor results. SNM exceeds percent body fat and weight. General no apparent distress SNM appears to have small neck and big hips. The body mass is not proportional. SNM appears to have large frame and big bones. SNM is able to do PRT without any problems. History of back problems is resolved. Realistic body weight should read 175 lbs. SNM has a weight control plan from level III SNM has been following the diet. But due to previous back problems was not able to exercise a full time. Since eval by ortho, back problems resolved and SNM started to exercise more frequently as seen in the results of past PRT. Recommend a waiver be approved.

950331:  Enlisted Performance Evaluation Report: “She has trouble getting her body fat percent within prescribed standards. She has been granted a six month waiver of the bodyfat standards, ending in June 1995.”

950410:  Recommendation for advancement to EN1 withdrawn due to failure to meet Navy physical readiness standards two times.

950421:  Medical Department, Naval SUBASE Kings Bay, GA: Patient does 45 minutes of aerobic exercise 4-5 days/week and on stationary bike at night. Patient also watches her dietary fat, drinks skim milk, etc. Eats 3 meals/day, she went through Level III 7/92 when she weighed 220 lbs, now weights 190 lbs. Patient is 5’8”.
She has attained her set point-realistic weight for her is 180-195 lbs. Another range is not recommended that she be required to attain a weight outside of this range.
950517:  EN2 C_ (Applicant) submitted her application for consideration of adjusted weight standards to Bureau of Naval Personnel (PERS-254E) via Commanding Officer, Naval Submarine Base, Kings Bay.

950621:  Administrative remarks from Commanding Officer, Naval Submarine Base, Kings Bay, GA to EN2 C_ (Applicant). Applicant advised that she was above the Navy’s minimum body fat percentage of 30% and notified of her enrollment the commands physical conditioning program. Furthermore, advised of administrative actions including separation that may result from continued failure of body fat standards.

950720:  Memorandum from LT R_, MC, USNR to SUBASE Commanding Officer: “I have determined that the existing height/weight standards and bodyfat standards are not realistic for her. I recommend that her individual healthy target weight zone be established as 180 - 195 lbs.”
950721:  NJP. [Extracted from Commanding Officer’s letter dated 960228. No further information in service record.]
950831:  Commanding Officer, Naval Submarine Base, Kings Bay’s endorsement of EN2 C_’s (Applicant) application for consideration of adjusted weight standard. Recommending approval.

951030:  Counseling: Advised of responsibility to participate in mandatory PRT.

951031:  Administrative Remarks from Commanding Officer, Kings Bay, Ga to EN2 C_ (Applicant). Wherein the Applicant was advised that members who accumulate three physical readiness program failures in a four year period may submit a request for a waiver from administrative separation processing or denial of re-enlistment to the Bureau of Naval Personnel, only if third program failure is due to exceeding body composition. Waiver request must be submitted within 30 days of the third program failure in a four-year period.

951107:  Assistant Chief of Naval Personnel, Personal Readiness and Community Support (Pers-6) denied the Applicant’s request for waiver from administrative actions do to non-compliance with body composition standards.
Furthermore, directed Commanding Officer, Naval Submarine Base, Kings Bay to continue with separation processing.
960221:  Applicant notified of intended recommendation for discharge with the
least favorable characterization of service as general (under honorable conditions) by reason of weight control failure. The Applicant was advised of her rights.
960221:  After consulting with counsel, the Applicant elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
960228:  Commanding Officer, Naval Submarine Base, Kings Bay, Georgia directed discharge with a general (under honorable conditions) by reason of weight control failure. Commanding Officer’s comments: “Since reporting on board SUBASE, Petty Officer C_(Applicant) has been unable to maintain the minimum body fat percentage prescribed by the Department of the Navy. She was duly warned and placed on a remedial PRT program. In December of 1994, a request for waiver was submitted and approved for six months with the understanding that she must meet body composition standards by the end of that six months. On 20 November 1995, Petty Officer C_(Applicant) submitted a second request for a permanent waiver for her body weight and subsequently denied. Based on the above, I am separating Petty Officer C_(Applicant) pursuant to MILPERSMAN 3610220.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19960306 by reason of weight control failure (A and B) with a service characterization of general (under honorable conditions). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. The Applicant’s service was flawed by nonjudicial punishment on July 21, 1995 . Additionally, i n the Applicant’s case the record clearly documents the Applicant’s failure to conform to the Navy body fat standards. The rehabilitation treatment aftercare plan clearly requires the service member to be within standards within a maximum of one year following the completion of treatment. The Applicant was granted a six-month extension for compliance with her aftercare requirement. The Applicant’s failure to meet the terms of her agreement validates the “weight control failure” for which she was separated. The Board could discern no impropriety or inequity and therefore considered the discharge proper and equitable. Relief denied.

The Applicant requested an upgrade in order to utilize her educational benefits. There is no requirement or law that grants recharacterization based on the issue of obtaining benefits. This issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, housing, employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue does not warrant relief.

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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant did not provide post service documentation for the Board’s consideration.

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 documentation to support any claims of post-service accomplishments or any other evidence related to her discharge 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), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3620260, SEPARATION OF ENLISTED PERSONNEL BY REASON OF WEIGHT CONTROL FAILURE

B. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective
21 Dec 94 until 02 Oct 96, Article 3420440, HEALTH AND PHYSICAL READINESS PROGRAM

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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