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NAVY | DRB | 2008_Navy | ND0800210
Original file (ND0800210.rtf) Auto-classification: Denied

ex-AE2, USN
Current Discharge and Applicant’s Request
Application Received: 20071120
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN (Physical fitness assessment failure)

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19981 0 24 - 19981109              Active: 19981110 - 20011213
Period of Service Under Review:
 Date of Enlistment: 20011214      Period of enlistment : Years Extension          Date of Discharge: 20070209
Length of Service : Yrs Mths 25 D ys      Education Level:         Age at Enlistment:       AFQT: 64
Highest Rank /Rate : E-5    Evaluation marks: Performance: 4.0 ( 7 )     Behavior: 3.29 ( 7 )         OTA: 3.71
Awards and Decorations ( per DD 214): Rifle Pistol (2) (3) MCOSR ,

Periods of UA /C ONF :

NJPs :    
        
S CMs :   
        
SPCMs:  

C C :      

Retention Warnings:
20061205- basis for counseling not specified - PFA FAILURE

         CO comments in transmittal ltr the Applicant’s only setback is the PFA failures; states member shall receive an honorable .

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

VIESCAS, Christopher J., 570-49-2111, ex-AE2, USN

Applicant’s Issues
1. Request RE Code change.
2. His CO directed an honorable discharge.
Decision

Date: 2008 0606             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion
: which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum for additional information regarding Reenlistment/RE-code s.

Issue 2 : ( ) RELIEF WARRANTED . The Applicant contends his discharge should be upgraded because his commanding officer directed he receive an honorable discharge. 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. The Applicant submitted a copy of the transmittal letter of 2 3 January 2 007, wherein the commanding officer states the Applicant is a versatile, knowledgeable and accomplished petty officer whose only setback is the PFA failures during the past four years. The commanding officer also indicated the Applicant was transferred to the Transient Personnel Unit for processing and would receive an honorable discharge. Pursuant to MILPERSMAN 1910-170, members processed for failure to pass physical assessment test should receive an honorable characterization unless Entry Level Separation or a General discharge is warranted. As evidenced in the member’s record and commanding officers comments contained in the previously referenced transmittal letter, the member has committed no misconduct during this enlistment and has an overall trait average of 3.71. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB d id discern an inequity in the characterization of the Applicant’s service. The Board vote d unanimously to upgrade the character of the discharge to honorable. Therefore, relief is warranted.

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 the discharge was proper but not equitable.
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. 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 other medical related reasons. 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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