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NAVY | DRB | 2008_Navy | ND0801819
Original file (ND0801819.rtf) Auto-classification: Denied

ex-OS3, USN
Current Discharge and Applicant’s Request
Application Received: 20080828
Characterization of Service Received:
Narrative Reason for Discharge: PHYSICAL STANDARDS
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 20010629 - 20010903        Active:

Period of Service Under Review:
Date of Enlistment: 20010904     Age at Enlistment:
Period of E nlistment : 4 Years 13 Months Extension
Date of Discharge: 20060816     Highest Rank/Rate: E-3
Length of Service : Y ear s M onth s 13 D a ys
Education Level:        AFQT: 57
Evaluation M arks: Performance: NFIR Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA : 20060729 – 20060814 (16 days)

NJP :
- 20060814 : Art icle 86 (UA), 1 specifications
Article 87 (Missing movement)
A rticle 92 (Failure to obey , drove a car with unresolved medical issues)
Awarded : Susp ended:

S CM : SPCM: CC

Retention Warning Counseling :

- 20060130: For exceeding height/weight limits and for failure to met PRT standards.

                  Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214. Block 18 , contains the words: “ MGIB eligible”. Since the Applicant received a “ G eneral (Under Honorable Conditions)” discharge he is not eligible to receive education benefits under the Montgomery GI Bill. Commander, Navy Personnel Command 5720 Integrity Drive, Millington TN 38055 will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

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 :

Oth er Documentation :

                  - Copy of payments made to M & S Media, Cincinnati Campus

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. 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 86, 87 and 92.


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

Applicant’s Issues

 1. Desires to obtain his education benefits.
2. Desires compensation for education incurred expenses.
3 . Claims he was discharged involuntarily .

Decision

Date : 20 08 1211                  Location: Washington D.C .        R epresentation :

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

 : The Applicant feels he rates his MGIB benefits because block 18 on his DD 214 states “MGIB eligible” In this context, t he term “ eligible ” means the Applicant has fully paid his share of the college fund fees necessary to claim the education benefit, commonly knows as the MGI Bill. It does not mean there it is an automatic entitlement to this benefit . T he NDR B does not have the a uthority to grant the relief which the Applicant is asking. The Veterans Administration (V A) adjudicates who will receive this college funding. Although one can petition the VA for relief, n ormally, one must have been discharged with an “ H onorable ” characterization of service to receive funding for college expenses . The entry of “MGIB eligible” in block 18 of the Applicant’s DD 214 is an administrative error and the NDRB will reco mmend the Commander, Navy Personnel Command make the necessary changes to correct this .

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’s service was marred by one retention warning for failure to maintain Navy height/weight standards and for failing the Physical Readiness Assessment Additionally, the Applicant was the subject of a Captain’s Mast for violations of the U niform C ode of M ilitary J ustice (UCMJ): Articles 86 ( U A); Article 87 (M issing ship’s movement ); and Article 92 (D isobeying a lawful order ) . Violations of these Articles are considered serious offenses, punishable by a punitive discharge and up to two years imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial. Based on his record of servi ce, the Applicant was awarded a “ G eneral (U nder H onorable C onditions ) ” discharge, which generally precludes a veteran have accessing educational benefits.

The Applicant states the VA has confirmed he is authorized for compensation to cover incurred educational expenses due to the inconsistency of his discharge. However, h e provides no documentation to support t he VA position. Since funding for educational benefits comes under the VA, the Department of Defense has no authority to reimburse the Applicant . The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

Issue 3 : (Equity) RELIEF NOT WARRANTED. The Applicant states he was discharged involuntarily as a result of
“ the will of the Navy.” He was willing to extend his Naval contract and had planned on making the Navy his career. As stated above, t he Applicant’s service was marred by one retention warning for failure to maintain Navy height/weight standards and for failing the Physical Readiness Assessment . Additionally, the Applicant was the subject of a Captain’s Mast for violations of the UCMJ . His v iolations are considered serious offenses, punishable by a punitive discharge and up to two years imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial. The Applicant was involuntarily administratively separated because he failed to meet the physical fitness assessment requirements necessary for retention. He was awarded a “ G eneral (Under Honorable Conditions) ” discharge due to his retention counseling and his NJP. His record of service did not support the Navy’s idea of a career productive service member nor an “ H onorable” discharge.


The Applicant provides no documentation to show where his discharge was inconsistent with the standards of disc ipline in the U . S . Navy or in anyway harsh . The Board determined the awarded discharge was appropriate and an upgrade w ould be inappropriate.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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