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NAVY | DRB | 2009_Navy | ND0901536
Original file (ND0901536.rtf) Auto-classification: Denied

ex-SHSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090512
Characterization of Service Received:
Narrative Reason for Discharge: PHYSICAL STANDARDS
Authority for Discharge: MILPERSMAN [PHYSICAL STANDARDS]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020730 - 20030715     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030716     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070105      Highest Rank/Rate: SHSN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 58
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3.16

Awards and Decorations ( per DD 214):     

Period of C ONF :

NJP :
- 20050810 :       Article (UA 2005071 5 , 20050719 -200507 20 (1 day) )
         Article 92 (Failure to obey an order or regulation)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20050810 :       For Article 86, absent without leave

- 20060307 :       For having failed 2 Navy Physical Fitness Assessments in the last four years, specifically, Spring 2004, Fall 2005

- 20060830 :       For having failed 2 Navy Physical Fitness Assessments in the last four years, specifically, Spring 2004, Fall 2005

Administrative Corrections to the Applicant’s DD 214

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

         “ 05JUL19-05JUL20 (1) ”
        
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. 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 . 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.       Wants to use the Montgomery GI Bill money to attend college .
2.       Discharge inequitable because she was unable to pass the PRT- had asthma

Decision

Date: 20 10 02 04             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 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 included NAVPERS 1070/613 (Page 13) warnings and one non-judicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence (U A ) for 1 day ) and Article 92 ( Failure to obey an order or regulation). Additionally, the record reflects the Applicant failed to meet the Bod y Fat Composition standards three times in a four year period. Based on the Applicant’s failure to comply with the physical fitness assessment standard her command administratively processed her for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review.

: (Nondecisional) The Applicant is seeking an upgrade to Honorable in order to qualify for the Montgomery GI Bill to pursue a career in the medical field . 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.

: (Decisional) ( ) . The Applicant contends her discharge was inequitable since it was based on her inability to pass the physical readiness test because s he was suffering from a sthma , which was diagnosed while she was in the Navy . The Applicant ’s record of service reflects that she completed the DD Form 2807, Report of Medical History, separation physical on 26 December 2006 and indicated that she was prescribed an inhaler due to shortness of breath when working out and blood samples were taken to determine her thyroid level but she was never given the results. A medical examiner completed S ection 30 of this document and indicated that the medical record entry of March 2006 reflects she experienced exercise induced asthma and had no record of being seen since that time . T he medical examiner also provided the results of the Applicant’s thyroid test from 16 November 2006 , which indicated t hat he r thyroid level w as within normal limits. The Applicant has not provided any documentation to prove that she is currently experiencing physical symptoms of resulting from a thyroid disorder , that she is being treated for such or that this disorder prevents her from complying with the Navy physical standards . Based on a review of the Applicant’s record of service , which included the in-service records provided by the Applicant and her statement contained in the DD Form 293, t he Board determined the following: 1) there is sufficient evidence to support a basis for discharge due to failure to meet physical standards, 2) there was no evidence that the Applicant ‘s medical condition (asthma) p revent ed her from complying with the Navy’s physical fitness standards, 3) and , an upgrade is or is not warranted based on the offenses committed by the Applicant, the numerous counseling warning ’s she received and lack of mitigating evidence.

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 awarded characterization of service shall and the narrative reason for separation shall remain PHYSICAL FITNESS ASSESSMENT FAILURE . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of 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 Disabled American 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 their 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.
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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