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NAVY | DRB | 2009_Navy | ND0900313
Original file (ND0900313.rtf) Auto-classification: Denied

ex-AMSAN, USN
Current Discharge and Applicant’s Request
Application Received: 20081202
Characterization of Service Received:
Narrative Reason for Discharge: WEIGHT CONTROL FAILURE
Authority for Discharge: MILPERSMAN 3620260

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

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        19910710 - 19920630     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19920701     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970113      Highest Rank/Rate: AMSAN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 65
Evaluation M arks:         Performance: 3.9 ( 2 )      Behavior: 4.0 ( 2 )        OTA: 3.80

Awards and Decorations ( per DD 214):      w/b* (2) BEA

Periods of UA /C ONF :

NJP :
- 19940531 :       Art icle 134 ( Drinking underage )
         Awarded : Susp ended :

- 19950317 :       Article 1 34 ( General disorder s and neglect s to the prejudice of good order and discipline )
         Article 92 (Failure to obey order or regulation)
         Awarded: Suspended:

S CM :   SPCM:   CC:

Retention Warning Counseling:

- 19940808:      For being formally evaluated as an alcohol abuser.
- 199 4 1005:      For fail ure to meet Physical Readiness Percent standards , due to failing the required run .
- 19951120 :       For fail ure to meet Physi cal Readiness Percent standards, due to failing the required run.

- 19960610:      For fail ure to meet Physi cal Readiness Percent standards, due to failing the required run.


NDRB Documentary Review Conducted (date):        19990315
NDRB Documentary Review Docket Number:   ND98-00791
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ JFT ”
         “ PHYSICAL STAND ARDS ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected 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 /To Representat ion :            From /To Congress m ember :         

Oth er Documentation :   

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3620260, SEPARATION OF ENLISTED PERSONNEL BY REASON OF WEIGHT CONTROL 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 .


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

Applicant’s Issues

 1.       Youth, immaturity , and personal problems contributed to his misconduct.
2.       H is alcohol dependency mitigated his misconduct.
3 .       Post-service conduct warrants consideration.

Decision

Date: 20 0 9 1109             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall WEIGHT CONTROL FAILURE .
Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings and non-judicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation), Article 134 ( Drinking underage), and Article 134 ( General disorders and neglects to the prejudice of good order and discipline) . In addition, th e Applicant signed his first page 13 for failing his physical readiness test (PRT) with his understanding that after a thir d failure of the PRT within a 4- year period, he w ould be separated from the n aval service. B ased on three failures by the Applicant to pass the PRT i n October 94, November 95, and June 96 as outlined in OPNAVINST 6110.1D and CNO Washington DC 291936Z APR 93 (NAVADMIN 071/93) , the Applicant’s processing for administrative separation was mandatory. When processed for administrative separation , the Applicant waived rights to consult with qualified counsel and submit a wri tten statement.

: (Decisional) ( ) . The Applicant contends that his youth , immaturity , and personal problems were mitigating reason s for his misconduct. The NDRB recognizes that many of our servicemembers are young when they enlist for service or experience personal problems throughout their career but still manage to serve honorably. While we understand some members may be less mature than others, the NDRB does not view a member’s claim of youth and immaturity to be mitigating factors or sufficient reasons for misconduct. In this case, the Board determined the Applicant’s personal issues were not mitigating factors for his misconduct.

: (Decisional) ( ) . The Applicant contends his alcohol dependency mitigated his misconduct. The Applicant did not contend that his command failed to provide him with the support needed to overcome his dependency, nor did the NDRB find evidence of such a failure. The NDRB does not view a lcohol consumption as an acceptable excuse for misconduct or poor judgment.

: (Decisional) ( ) . The Applicant c ontends his post-service accomplishments warrant consideration for an upgrade in char acterization to Honorable, and he provided verifia ble documentation to support his contention. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration h is testimony, and the facts and circumstances unique to this case, the NDRB determined relief is not warranted based on equitable grounds. The Board voted unani mously to keep the characterization of service the same as issued. The Board found administrative errors in the narrative reason for separation and separation code and will recommend changes.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to PHYSICAL STANDARDS from WEIGHT CONTROL FAILURE .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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