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NAVY | DRB | 2013_Navy | ND1301812
Original file (ND1301812.rtf) Auto-classification: Denied

ex-EN3, USN
Current Discharge and Applicant’s Request
Application Received: 20130913
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       UPGRADE TO A LEVEL ABOVE P FA FAILURE
        
Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19991104 - 20000131     Active:   20000201 - 20031111 HON

Period of Service Under Review:
Date of Current Enlistment: 20031112     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060721      Highest Rank/Rate: EN3
Length of Service: Y ear( s ) M onth( s ) 10 D a y ( s )
 Education Level:        AFQT: 32
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 2.3 ( 4 )        OTA: 3.29

Awards and Decorations ( per DD 214):     

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:

          “ PHYSICAL STANDARDS ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 :        





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

Applicant’s Issues

 1.        The Applicant seeks to change her RE-code so she can reenlist .
2.       The Applicant contends she should have been waived from the Physical Readiness Test ( PRT ) / Body Composition Assessment ( BCA ) for 6 months after receiving a waiver .
3 .       The Applicant contends she was not given 10 days to complete a statement after failing her PRT. She also contends her HFT Separation Code is incorrect.
4.       The Applicant contends her post-service documentation warrants consideration for an upgrade.
Decision

Date : 20140417             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 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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. Based on the Applicant ’s Physical Fitness Assessment (PFA) Failure , 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 an administrative board .

: (Nondecisional) The Applicant seeks to change her RE-code so she can reenlist . 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 B oard for Correction of Naval Records 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. The Applicant’s RE code of RE-3F means “Failed PFA” and was properly assigned. It does not, however, bar the Applicant from reenlistment. She is eligible for reenlistment but will require a waiver to reenlist. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. However, the needs of the service and current Recruiting Command quotas will determine whether or not a recruiter will submit a waiver for the Applicant to reenlist.

: (Decisional) ( ) . The Applicant contends she should have been waived from the PRT/BCA for 6 m onths after receiving a waiver. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant provided a paragraph from OPNAVINST 6110.1H to support her contention that she should have received a waiver for 6 months following her pregnancy. The OPNAVINST 6110.1H is very clear that the exception from the requirements of the PRT and BCA is while the servicewoman is pregnant and up until 6 months following delivery. However, both the Applicant’s statements and the medical record show the Applicant had a miscarri age. OPNAVINST 6110.1H directs that in cases such as this , a medical evaluation should be obtained to determine when a servicewoman may participate in physical conditioning . The Applicant submitted a copy of her Spring 2006 PFA results where it shows she was waived for the PRT portion but failed the BCA portion. Even though the Applicant was waived for her PRT portion, there is no record that she was medically or otherwise exempted from her requirement to maintain body composition standards. Along with her previous PFA failures (Fall 2004, Spring 2005, and Fall 2005 ) , the Applicant warranted administrative separation processing for Physical Standards. The NDRB determined her discharge was proper. Relief denied.





: (Decisional) ( ) . The Applicant contends she was not given 10 days to complete a statement after failing her PRT. She also contends her HFT Separation Code is incorrect. T he Applicant stated in her DD Form 293 and the service record confirms that when she was given the opportunity to make a statement after she failed her last PRT, she declined to do so . Additionally, when notified of administrative separation processing for Physical Standards, the Applicant waived her rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The NDRB determined she was afforded full due process during her PFA failures and during the administrative separation process. Finally, per 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 , the Separation Code of HFT is correct for a servicemember who waived her right to appear before an administrative separation board . Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends her post-service documentation warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. The Applicant submitted a statement detailing her post-service conduct. However, the Applicant received an Honorable characterization of service , and her post-service conduct confirms she continues to live honorably. The post-service conduct, however, has no bearing on the propriety of the discharge, and so the narrative reason for separation will remain Physical Standards. Relief denied.

 S ummary: 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.

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 .


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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