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NAVY | DRB | 2008_Navy | ND0800018
Original file (ND0800018.rtf) Auto-classification: Denied

ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 20071001
Characterization of Service Received:
Narrative Reason for Discharge: PHYSICAL STANDARDS
Authority for Discharge: MILPERSMAN 1910-170

Applicant’s Request:     Characterization change to:
                           Narrative Reason change:

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20011220 - 20020625             
Period of Service Under Review:
 Date of Enlistment: 20020626               Period of enlistment : Years Months    Date of Discharge: 20060901
Length of Service : Yrs Mths 06 D ys      Education Level:
Age at Enlistment:       AFQT: 64         Highest Rank /Rate : AOAN
Evaluation marks: Performance: N/A        Behavior: N/A              OTA: N/A
Awards and Decorations ( per DD 214): , , , and

NJPs :     20030303 : Art icle s 92 (failure to obey) and 112 (drunk on duty) . Awarded - , , , and .
         20030326 : Art icle 92 (failure to obey) . Awarded - , , , and .

Retention Warnings: 20040606 , 20050124, and 20051215 - F ailure to meet body composition assessment standards .

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:   Other Records:

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



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

Applicant’s Issues

 1. Inequitable because based on PRT standards.
2. Served full term was on 5 th year of contract, service was good and deserves and honorable.

Decision

Date: 20 08 0207             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall PHYSICAL STANDARDS .
Discussion

 Issue 1 ( ): The Applicant states that his discharge was inequitable because it was based upon PRT standards. MILPERSMAN Article 1910-170 states that m embers can be processed for administrative separation (ADSEP) when they do not achieve prescribed physical readiness standards by failing to pass three physical fitness assessment (PFA) cycles in a 4-year period. Additionally, this processing is m andatory begin ning July 2006. The Applicant’s PFA requirement was waived in the spring of ’04 due to operational schedule. In the fall of ’04 the Applicant failed to attend the PFA then he failed the next three PFA’s in a row. Throughout this period of five scheduled PFA’s the Applicant failed the body composition measurement beginning at 25% body fat and increasing to 32% body fat as a result of gaining 53 pounds. Three times during this period the Applicant was given a retention warning which also served to direct the Applicant to take corrective action and seek assistance. This issue is without merit.

Issue 2 ( ): The Applicant claims that he had com pleted his required enlistment and was serving on an extension, also that his conduct was good and deserving of an honorable discharge. T he Applicant’s service was marred by three retention warnings and two nonjudicial punishments for violations of UCMJ Articles 92 (failure to obey, two specifications) and 112 (drunk on duty) . The Applicant was notified of his impending discharge and of his rights to consult counsel and to have his case reviewed by a GCMCA. The Applicant waived all rights and did not object to his discharge or the characterization of his service. After assuring compliance with MILPERSMAN 1910-170 the separation authority directed the Applicant’s discharge by reason of physical standards with a service characterization of general (under honorable conditions). N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A general (under honorable conditions) characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in his characterization of service.

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evid ence submitted by the Applicant the Board found that

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 3 August 2005 until Present, MILPERSMAN Article 1910-170, SEPARATION BY REASON OF PHYSICAL FITNESS ASSESSMENT FAILURE.

B. NAVADMIN 180/05, 271525Z JUL 05, PHYSICAL READINESS PROGRAM.

 C . 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 .

D . The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 .

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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