Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000860
Original file (ND1000860.rtf) Auto-classification: Denied

ex-CTT3, USN
Current Discharge and Applicant’s Request
Application Received: 20100203
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)        20011116 - 20020304     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20020305     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070806      Highest Rank/Rate: CTT3
Length of Service : Y ear s M onth s 02 D a ys
Education Level:        AFQT: 77
Evaluation M arks:         Performance: 2.5 ( 4 )      Behavior: 1.7 ( 4 )        OTA: 2.67

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20050105 :      Article (Dereliction of duty, failing to perform proper maintenance)
         Article (False official statement)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20040606 :      For failure to meet body composition assessment standards (BCA) .

- 20060217 :      For failure to meet physical readiness test standards.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 17 January 2007 until
20 May 2008, 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 wants to use the GI Bill to attend college.
2.       The Applicant contends that, according to MILPERSMAN 1910-170, the characterization of separation for Physical Fitness Assessment (PFA) failures is normally Honorable, and believes her command mistakenly separated her with a G eneral discharge due to the negative connotation and lack of written policy regarding PFA failure s .

Decision

Date: 20 1 1 0324             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’s record of service included two NAVPERS 1070/613 (Page 13) warnings and one non-judicial punishment for violation s of the Uniform Code of Military Justice (UCMJ) : Article 92 (Failure to o bey o rder or r egulation) and Article 107 (False official statements). Based on the Applicant’s failure of multiple PFAs , her command administratively processed 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 review.

: (Non - decisional) The Applicant wants to use the GI Bill for college. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans' benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends that , according to MILPERSMAN 1910-170, the characterization of separation for PFA failures is normally Honorable, and believes her command mistakenly separated her with a General discharge due to the negative connotation and lack of written policy regarding PFA failure s . T he NDRB determined her discharge was in accordance with MILPERSMAN 1910-170 . A ccording to MILPERSMAN 1910-170, members processed for failure to pass PFA s should receive an Honorable characterization unless Entry Level Separation or General is warranted . As e videnced in the C ommanding O fficer ’ s comments contained in t he letter recommending administrative separation , the member violated Articles 92 and 107 of the UCMJ, for which she received NJP during this enlistment. Due to this misconduct, the NDRB concluded that the General characterization was warranted , and therefore discerned no impropriety or inequity in the discharge action . Relief denied.

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 .

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 for additional information.


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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0800018

    Original file (ND0800018.rtf) Auto-classification: Denied

    After assuring compliance with MILPERSMAN 1910-170 the separation authority directed the Applicant’s discharge by reason of physical standards with a service characterization of general (under honorable conditions). The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in his characterization of service. ” Additional Reviews : Subsequent to a document review, former members are...

  • NAVY | DRB | 2014_Navy | ND1401057

    Original file (ND1401057.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Relief granted.Summary:...

  • NAVY | DRB | 2015_Navy | ND1501159

    Original file (ND1501159.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A. Therefore, the awarded...

  • NAVY | DRB | 2014_Navy | ND1400777

    Original file (ND1400777.rtf) Auto-classification: Denied

    Therefore, the NDRB discerned no impropriety and the Applicant’s separation for Physical Standards was proper.However, per Naval Military Personnel Manual Article 1910-170, the characterization of service for separation due to Physical Standards should be Honorable unless a General is warranted. Therefore, the awarded characterization of service shall but the narrative reason for separation shall remain.The Applicant remains eligible for a personal appearance hearing for a period of fifteen...

  • NAVY | DRB | 2010_Navy | ND1000373

    Original file (ND1000373.rtf) Auto-classification: Denied

    However, because of the 2 ½-year period from the commission of the serious offense to the time of discharge, the Board discerned inequity in the narrative reason for separation and voted unanimously to change the narrative reason for separationfrom Misconduct (Serious Offense) to Physical Standards.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...

  • NAVY | DRB | 2013_Navy | ND1301812

    Original file (ND1301812.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2012_Navy | ND1201117

    Original file (ND1201117.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20020821 - 20030817Active: 20030818 -20070807 HON Period of Service Under Review: Date of Current Enlistment: 20070808Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20100723Highest Rank/Rate:HT2Length of Service:Year(s)Month(s) 15 Day(s)Education Level:AFQT: 71EvaluationMarks:Performance:4.0(3)Behavior:1.3(3)OTA: 3.04Awards and Decorations...

  • NAVY | DRB | 2008_Navy | ND0800070

    Original file (ND0800070.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or 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 Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • NAVY | DRB | 2011_Navy | ND1101594

    Original file (ND1101594.rtf) Auto-classification: Denied

    Representation: 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. 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...

  • NAVY | DRB | 2010_Navy | ND1001160

    Original file (ND1001160.rtf) Auto-classification: Denied

    Member failed multiple body fat composition measurements, physical readiness tests, physical fitness assessments, and fails to attend numerous assigned fitness enhancement program sessions.... Due to member’s multiple failures and unwillingness to participate in programs designed to assist her, I strongly recommend separation under General Under Honorable Conditions.” Based on all the available evidence, to include the Applicant’s in-service performance and conduct and with no evidence to...