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NAVY | DRB | 2010_Navy | ND1000189
Original file (ND1000189.rtf) Auto-classification: Denied

ex-MASN, USN
Current Discharge and Applicant’s Request
Application Received: 20091021
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20020628 - 20030623     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030624     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051208      Highest Rank/Rate: MASN
Length of Service : Y ear ( s ) M onth ( s ) 15 D a y ( s )
Education Level:        AFQT: 84
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.0 ( 3 )        OTA: 2.56 (3)
Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :     NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :

- 200 40429 :       For failure to meet physical readiness test standards (failed run portion of test).

Administrative Corrections to the Applicant’s DD 214

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

 “ MILPERSMAN ”

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 3 August 2005 until 16 January 2007,
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.        Applicant contends her discharge was inequitable as she committed no misconduct and was experiencing hip joint problems , w hich affected her physical capabilities .

Decision

Date: 20 10 1110             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .

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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied one decisional issue for the Board’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning for failing to meet physical readiness standards. Additionally, three evaluation and counseling reports reflected the Applicant failed four physical readiness tests from the Spring of 2004 through the Fall of 2005. The records did not reflect any history of nonjudicial punishment or trials by court-martial. Based on her inability to maintain the Navy’s physical readiness standards, in failing four physical readiness tests, the Applicant ’s command processed her for administrative separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement , or request a General Court-Martial Convening Authority review .

The Applicant provided documentation that included a personal statement from the Applicant and five letters of character reference from family and friends.

: (Decisional) ( ) . The Applicant contends her discharge was inequitable as she committed no misconduct and was experiencing hip joint problems , which affected her physical capabilities . The U.S. Navy Military Personnel Manual (MILPERSMAN) section 1910-170 and NAVADMIN 180/05 (dtg 271525Z JUL 05 ) provide specific details to commanders whose personnel cannot meet or maintain the U.S. Navy physical readiness standards. For the period which covered the Applicant’s separation, it specifically states , “ July 2005: Commanding officers (COs)/officers in charge (OICs) are authorized, with immediate superior in command (ISIC) concurrence, to start ADSEP processing of personnel who failed the PFA three or more times in a 4-year period, regardless if there was a change in branch class code status, and in their judgment, are not trying or indicate they are unwilling to try to meet standards . ” The Applicant’s service records indicate she failed the first PRT (run portion only) in the spring of 2004 and was subsequently assigned to the fitness enhancement program (FEP). The records also reflect that she failed the fall 2004 PRT (body fat, push-ups, and run portions) and spring 2005 PRT (body fat, push-ups, and run portions) with an increase in weight gain. The Applicant claims she rigorously maintained a healthy diet, with exercise and an active lifestyle, but could not maintain the weight or run standards due to ongoing, chronic hip pain and lower back pain that was caused by a slip in the bathtub and/or bursitis of the hips (VA medical exams Mar 2008-Mar 2009) . She also stated that the combination of meds she was prescribed (birth control, migraine pain meds, etc) likely caused her unexplained weight gain . Her medical records reflect multiple medical exams, consults for orthopedic evaluation, prescriptions for pain and non-steroidal anti-inflammation drugs, and limited duty status assignment as explained in the Applicant’s personal statement. The NDRB did not have the Applicant’s administrative separation package available to review the commanding officer’s comments to assess whether ADSEP processing was executed due to the Applicant not trying or her unwillingness to meet standards. The Board noted the Applicant’s three evaluation and counseling reports contained block 43 comments that indicated “her utmost professionalism in standing post , ” “eagerly seeks more responsibilities , ” “needs little supervision , ” and “pursuing associate degree in criminal justice . ”

MILPERSMAN section 1910-170 states t he characterization of se rvice due to administrative separation for physical standards should be Honorable, unless an Entry Level Separation (ELS) or General (Under Honorable Conditions) is warranted per MILPERSMAN 1910-300 . After conside ring all the available evidence, in light of the fact the administrative separation package is missing and in consideration of the fact there is no misconduct or substandard performance documented in her record, the Board found that her administrative separation was proper, but the characterization of service was inequitable per the applicable regulations.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries , the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

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.
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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