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

ex-MSSN, USN
Docket No. ND99-00585

Applicant’s Request

The application for discharge review, received 990325, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 000104.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: NAVMILPERSMAN, Article 1910-170 (formerly Article 3620260).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Discharge of General (Under Honorable Conditions) was not warranted.  I was a weight control failure due to physical limitations caused by my right knee, back, and hypertension conditions.  Please review & correct my discharge to HONORABLE!

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214.
Copy of VA Rating Decision dated Sept. 17, 1998.
Complete copy of applicant’s Service Medical Records.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USN 		000000 - 000000	HON
	Inactive: USNR (DEP)	000000 - 000000	COG

Period of Service Under Review:

Date of Enlistment:  920402		Date of Discharge:  980611

Length of Service (years, months, days):

	Active:    06  02  10
	Inactive:  None

Age at Entry:  25			Years Contracted:  6 (24 months extension)

Education Level:  12			AFQT:  37

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.73 (3)		OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWASM, Navy”E”, AFSM, SSDR(2)

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority:  NAVMILPERSMAN, Article 1910-170 (formerly Article 3620260).

Chronological Listing of Significant Service Events:

920610:	Retention Warning:  Applicant being retained in the Naval Service in spite of your defective enlistment and induction due to fraudulent entry into Naval Service as evidenced by your failure to disclose that you had a dependent spouse and daughter at the time of your enlistment.  Applicant notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951029:	NJP for violation of UCMJ, Article 128:  Assault consummated by a battery.
	Award:  Restriction and extra duty for 45 days.  No indication of appeal in the record.

951103:	Retention Warning:  Applicant being retained in the Naval Service in spite of your assault consummated by a battery on 29 Oct. 1995.  Applicant notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

961101:	Placement on Mandatory PT Program/counseling (First Cycle Failure):
	Applicant formally evaluated as not meeting the Navy’s minimum physical fitness requirements and advised that to remain eligible for continued service he must participate in the Mandatory PT program regimen and that failure to cooperate in and complete the regimen may constitute grounds for separation processing. 

961108:	Counseling:  Applicant advised that he failed the Nov. 1996 physical readiness test by failing the height/weight/body fat and running and placed on the command’s sponsored physical conditioning program.  Sources of assistance included.  Advised if this is the third failure in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

970425:	Placement on Mandatory PT Program/counseling (Second Cycle Failure):  Applicant formally evaluated as not meeting the Navy’s minimum physical fitness requirements and advised that to remain eligible for continued service he must participate in the Mandatory PT program regimen and that failure to cooperate in and complete the regimen may constitute grounds for separation processing. 

971124:	Counseling:  Applicant advised that he failed the April 1997 physical readiness test by failing the height/weight/body fat and running and placed on the command’s sponsored physical conditioning program.  Sources of assistance included.  Advised if this is the third failure in a four year period, you will be process for administrative separation (unless approved for a waiver by the Bureau of Naval Personnel).

980501:	Placement on Mandatory PT Program/counseling (Third Cycle Failure):  Applicant formally evaluated as not meeting the Navy’s minimum physical fitness requirements and advised that to remain eligible for continued service he must participate in the Mandatory PT program regimen and that failure to cooperate in and complete the regimen may constitute grounds for separation processing. 

980520:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of weight control failure 

980520:  	Applicant advised of his rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980520:	Commanding officer recommended discharge with general (under honorable conditions) by reason of weight control failure.

980608:	 BUPERS directed the applicant's discharge under general (under honorable conditions) by reason of weight control failure.  

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 980611 under general (under honorable conditions) for weight control failure due to not meeting the prescribed physical readiness standards (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to applicant’s issue 1, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 12 Dec 97 until 31 Aug 98, 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 Dec 97 until present, Article 6110-010, HEALTH AND PHYSICAL READINESS PROGRAM.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023