Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801216

Original file (ND0801216.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20080515
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3620280 (FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS)

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19960127 - 19960717                 Active:

Period of Service Under Review:
Date of Enlistment: 19960718     Period of E nlistment : Years Extension          Date of Discharge: 19960731
Length of Service : Y ear s M onth s 14 D a ys Education Level:     Age at Enlistment:     AFQT: 46
Highest Rank /Rate : SR    Evaluation M arks: Performance: NFIR      Behavior: NFIR OTA: NFIR
Awards and Decorations ( per DD 214): NONE

Periods of UA /C ONF :

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/ 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 Congress m ember :

Other Documentation (Describe) :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul y 19 94 until 2 Oct ober 19 96,
Article 3620280, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENT
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 .

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

Applicant’s Issues

1. R eenlistment opportunity.
2. Accused of fraudulent enlistment for acting on advice of his recruiter.

Decision

Date : 20 08 0919    Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS .

Discussion

: The Applicant is seeking an honorable discharge in order to reenlist in the Navy. He admits to sustaining a knee injury after entering the delayed entry program and therefore was unable to complete his obligation to the Navy. However, he contends he has now recovered and desires to rejoin the Navy. 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 , specifically the paragraph concerning s , for additional information regarding . If the Applicant has recovered from his injury he can return to a recruiter and begin the process to reenlist back into the Navy.

: ( ) . The Applicant contends he was accused of fraudulent enlistment when he acted on the advice of his recruiter and is requesting his discharge be corrected. 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. There is no evidence in the record or provided by the Applicant to support the allegation he was accused of fraudulent enlistment. The Applicant’s record of service reflects that he was discharged from the Navy on 31 July 1996 by reason of defective enlistment and induction into the Naval Service as evidenced by an uncorrectable anterior ligament deficient right knee. Pursuant to MILPERSMAN 3620280, a member may be separated on the basis of erroneous enlistment if the enlistment would not have occurred if the relevant facts had been known by the Navy Department or had appropriate directives been followed , it was not the result of fraudulent conduct on the part of the member; and the defect is unchanged in any material respect. The Applicant noted on his enlistment medical form, SF Form 93 , he had sustained a knee injury from football in autumn of 1995. Per the Applicant’s SF 600, Chronological Record of Medical Care of 21 July 1 996, he sought treatment for right knee pain and was diagnosed with an ACL deficient right knee that existed prior to his entry in service. The medical provider also noted the Applicant was a “poor rehab candidate.” Based on a review of the available medical and service records , the Applicant met the requirements for separation due to defective enlistment . Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity .

Additionally, t he Board determined the characterization of service was also appropriate based on the evidence of record. By regulation, an uncharacterized description shall be used when separation is initiated while a member is in an entry level status, except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstances warrant characterization as under other than honorable conditions, or when characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy. The Applicant's service record did not indicate any unusual circumstances of personal conduct or performance of duty during his less than one mont h in the military that would clearly warrant an honorable characterization of service. The Board determined an upgrade or change would be inappropriate.

The NDRB advises the Applicant that, with respect to nonservice related administrative matters, i.e. Department of Veterans Affairs benefits, civilian employment, etc., an uncharacterized separation shall be considered the equivalent of an honorable or general (under honorable conditions) characterization.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

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 or is referred to a court martial 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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NAVY | DRB | 2008_Navy | ND0801216

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