Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100132

Original file (ND1100132.rtf) Auto-classification: Denied

ex-ET3, USN

Current Discharge and Applicant’s Request

Application Received: 20101020

Characterization of Service Received:

Narrative Reason for Discharge: WEIGHT CONTROL FAILURE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19921024 - 19930830     Active:

Period of Service Under Review:
Date of Current Enlistment: 19930901     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980807      Highest Rank/Rate: ET3
Length of Service : Y ear ( s ) M onth ( s ) 7 D a y ( s )
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.7 ( 1 )      Behavior: 3.7 ( 1 )        OTA: 3.60 4.0 scale

Awards and Decorations ( per DD 214):      Pistol BATTLE “E” AWARD

Periods of UA /C ONF :

NJP :

- 19960611 :      Article (Failure to obey an order or regulation , 19960522 )
         Awarded: (10 days) Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19930925 :       For your fraudulent entry into N aval service as evidenced by your failure to disclose your pre-service civil/drug involvement (fined for missing license plate, Feb 1993) .

- 19951031:      For enrollment in the command remedial physical conditioning program.

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 :

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

Applicant’s Issues

1.        Applicant seeks a discharge upgrade to obtain veteran education benefits.
2.       Applicant contends his discharge was inequitable based on requirements set forth in applicable directives.
3 .       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 201 19             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 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. 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 two NAVPERS 1070/613 (Page 13) retention warning s for fraudulent entry into Naval service and assignment to the command remedial condition program (31 Oct 1995 ) . The record also contained one for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, 22 May 1996 ) . Based on failing to maintain Navy physical readiness standards three times within a four year period , the Applicant was processed for a dministrative separation per the Naval Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing for weight control failure and commission of a serious offense (fraudulent entry and violation of UCMJ Article 92) using the procedure on 27 Jul 1998 , the Applicant waived his rights to consult with a qualified counsel, submit a written statement , and request an administrative separation board . In the Commanding Officer ’s endorsement of the Applicant’s administrative separation package, he stated: “Since reporting aboard, (the Applicant) has been consistently counseled on his weight control problem. He was placed on remedial PRT in Oct 1995 and was able to initially lose the weight. Over the past three years his weight gain has been problematic which resulted in three PRT Failures. Additionally, he was awarded CO’s NJP for violation of UCMJ Art 92 , failure to obey an order or regulation and given 10 days restriction and extra duties. Based on the above, I highly recommend (the Applicant) be separated from the Naval S ervice with a General (Under Honorable Conditions) discharge . ” On 31 Jul 1998, after review of the Applicant’s entire record of service, the Commander, Naval Surface Forces Pacific directed that the Applicant be separated from the Navy with a General (Under Honorable Conditions) discharge due to Weight Control Failure. The Applicant’s discharge was completed on 7 Aug 1998 as directed.

Issue 1: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Is sue 2: (Decisional) ( Equity) RELIEF WARRANTED. The Applicant contends his discharge was inequitable based on requirements set forth in applicable directives. The Applicant was separated in accordance with the following section of the MILPERSMAN: Change 18 effective 12 December 1997 until 31 August 1998, Article 1910-170, SEPARATION BY REASON OF WEIGHT CONTROL AND/OR PHYSICAL READINESS TEST FAILURE. The NDRB conducted an exhaustive review of the Applicant’s service records. After careful analysis of and deliberation o n the circumstances surrounding the Applicant ’s discharge , the Board found that his administrative separation for weight control failure was proper , but no t equitable per the applicable orders and directives in effect at the time of his discharge. With respect to characterization of service, MILPERSMAN section 1910-170 states t he c haracterization should be Honorable, unless an Entry Level Separation (ELS) or General (Under Honorable Conditions) is warranted per MILPERSMAN 1910-300. The Applicant did have one minor NJP for failure to obey an order or regulation (violation of UCMJ Art 92) , which resulted in only 10 days restriction and

a NAVPERS 1070/613 for fraudulent enlistment (failing to disclose a citation/$70 fine for a missing license plate he received prior to enlistment). Although the Separation Authority was justified in awarding the Applicant a General (Under Honorable Conditions) discharge , the Board determined that based on the facts and circumstances surrounding the misconduct of record (relatively minor) and the Applicant’s evaluation report average of 3.60 (on a 4.0 scale) , relief was warranted.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The Applicant submitted post-service documentation to the Board, which included a personal letter to the NDRB , employer letters of reference , character letters of reference , employer performance review reports , and professional achievement certificates . Although the Applicant’s efforts to improve his life are noteworthy, the Board determined this issue did not provide basis for which relief could be granted. However, the Applicant is referred to the analysis and findings in I ssue 2 directly above. 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 the administrative separation p rocess, the Board found the discharge was proper but not equitable at the time of discharge. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain WEIGHT CONTROL FAILURE . 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 for additional information.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18 effective 12 December 1997 until 31 August 1998, Article 1910-170, SEPARATION BY REASON OF WEIGHT CONTROL AND/OR PHYSICAL READINESS TEST FAILURE.

B. Naval Military Personnel Manual, (NAVPERS 15560C, Change 18, effective 12 December 1997 until present, Article 6110-010, HEALTH AND 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 .

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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NAVY | DRB | 2011_Navy | ND1100132

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