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NAVY | DRB | 2007_Navy | ND0700502
Original file (ND0700502.rtf) Auto-classification: Denied
ex-AR, USN
ND07-00502
Current Discharge and Applicant’s Request
Application Received: 20070307   Characterization Received: (ENTRY LEVEL SEPARATION)
Narrative Reason: FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS          Authority: MILPERSMAN 1910-130

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Desire to re-enlist
                           2. MEPS physicians had cleared for enlistment

Decision

 By a vote of the Characterization shall (ENTRY LEVEL SEPARATION) .
 By a vote of the Narrative Reason shall FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS .
Date: 20 080117             Location: Washington D.C         R epresentation :

Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). The Applicant contends that MEPS medical personnel identified his condition and approved his enlistment. The government is entitled to a presumption of regularity in the conduct of its affairs. The Board noted that the Applicant was identified with a colobama (a hole) in his right eye during his MEPS physical on 20050322, and identified for an ophthalmology examination. The record does not indicate what, if any, examination, treatment or procedure the Applicant underwent between then and when he was diagnosed with pseudophakia (natural lens replaced with an artificial lens) in his right eye during his entry eye examination on 20060208, nearly 11 months later. The Board concluded that the diagnoses were not the same, and that the Applicant had not overcome the presumption of regularity attaching to either diagnosis.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his less than 1 month in the military to warrant a change of discharge to honorable.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20050419 - 20060201              Active:
Period of Service Under Review:
 Date of Enlistment: 20060202               Years Contracted : ; Extension:   Date of Discharge: 20060222
Length of Service : 00 Yrs 00 Mths 21 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:                  Age at Enlistment:                AFQT: 76                   Highest Rank /Rate : AR
Evaluation marks (# of occasions):       NOT APPLICABLE            Awards and Decorations ( per DD 214): NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20050322:        Medical Record: Reason for visit: MEPS entrance physical
         Diagnosis: Right eye colobama.
         Recommendation: Ophthalmologic examination.

2006020 8 9 :       Medical Record: Reason for visit: Entry Eye Examination
         Diagnosis: Pseudophakia (Layman’s terms: Natural lens replaced with artificial lens R )
         Recommendation: Entry level medical separation for existed prior to entry condition.

Discharge Process

 Date Notified:                                       20060214
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20060214
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):       
Separation Authority (date):     CO, RECRUIT TRAINING COMMAND, GREAT LAKES ( 20060216 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20060222

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:             Other Documentation (Describe)

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 20 Jun 2005 until Present, Article 1910-130, Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .


ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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