Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901165

Original file (ND0901165.rtf) Auto-classification: Denied

ex-FN, USN

Current Discharge and Applicant’s Request

Application Received: 20090331

Characterization of Service Received:

Narrative Reason for Discharge : FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS
Authority for Discharge : M ILPERSMAN 1910-130 [ 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)        20060831 - 20070410     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070411     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070419      Highest Rank/Rate: FM
Length of Service:
         Inactive:        Year(s) Month(s) 20 D ay(s)
         Active   Year(s) Month(s) 09 D ay(s)
Education Level:        AFQT: 54 /61
Evaluation M arks:         Performance: N/A          Behavior: N/A    OTA: N/A

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL ”

The NDRB will recommend to the Commander, 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 :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 20 June 2005 until Present, Article 1910-130, Separation by Reason of Defective Enlistments 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. Seeking reinstatement into the Navy .
2. Wants an Honorable characterization of service.
Decision

Date: 20 0 9 1105 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 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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service indicates on 31 August 2005 the Commander, Navy Recruiting Command ordered additional information to determine whether the Applicant was physically qualified for enlistment into the Navy. The Applicant’s DD Form 2808 , Report of Medical Examination of 22 August 2006 indicates that upon enlisting into the Applicant tested negative t he Human Immunodeficiency Virus (HIV) . However, p ursuant to an Administrative Remarks, NAVPERS 1070/613 of 18 April 2007 generated by the Officer in Charge at Personnel Support Detachment, Recruit Training Great Lakes, Illinois, the Applicant was de e med not eligible for reenlistment due to : “ASMO Code 307” [medical condi tion] without prior approval of the Navy Personnel Command and enlistment in any other branch would require a waiver. The Applicant’s DD Form 214 indicates that he was separated based on his failure to meet medical/physical procurement standards. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his right s to consult with qualified counsel, submit a written statement, and reque st a General Court-Martial Convening Authority (GCMA) review. A presumption of regularity was applied in the absence of a n administrative separation package and incomplete medical records.

: (Nondecisional) The Applicant is seeking reinstatement into the Navy and contends that after shipping off to boot camp during the first week of medical exams he tested positive for HIV and was “ kicked out of the Navy.” The Applicant contends that he wants to serve in the Navy and is confident in his ability to overcome his medical condition with support from the Navy. The Applicant submitted medical reports from LabCorp dated 13 March 2007 (prior to his enlistment), and 05 June 2008 indicating that he tested positive for HIV. He also submitted lab results from 07 January 2009 to demonstrate that his condition is no longer detectable. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement of persons into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code or reinstate an individual. Only the BCNR can make changes to reenlistment codes or reinstate individuals into the military. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Issue 2: (Decisional) ( ) . The Applicant has also requested that his characterization of service be changed to Honorable. 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 O ther T han H onorable C onditions, or when characterization of service as H onorable 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 10 days in the military that would clearly warrant an H onorable characterization of service. The NDRB advises the Applicant that with respect to non - service related administrative matters, i.e. Department of Veterans Affairs benefits, civilian employment, etc., an U ncharacterized separation shall be considered the equivalent of an Honorable or General (Under Honorable Conditions) characterization.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the characterization of service awarded shall and the narrative reason for separation shall remain FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

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.

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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NAVY | DRB | 2009_Navy | ND0901165

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