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

 ex-RMSN, USN
Docket No. ND00-00643

Applicant’s Request

The application for discharge review, received 000424, 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 001026.  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.  I was in the military, And I was arrested for suspended Drivers Licence. and I missed work.  And I was marked UA.  I was sent to court martial for that charge and that charge was dismissed.  The judge didn't think there was reasons for a Court Martial so he threw it out.  Because I had court martial proceedings the Discharge review board gave me a General Under Honorable Conditions.

I wise to continue my education and Due to recent laws I can't go to GI School with A General Discharge.  I need a change of discharge from General Discharge under honorable condition to a Honorable.

I hope you will give my case your most serious consideration and grant me your Honorable Discharge so I can continue my education; under the GI Bill.

*Enclosed is my Dean List while I was in school*

Documentation

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

Copy of DD Form 214
Copy of Summer semester 1999 grade report dated November 12, 1999

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		910709 - 950707	HON
	Inactive: USNR (DEP)	901114 - 910708	COG

Period of Service Under Review:

Date of Enlistment:  950708		Date of Discharge:  981124

Length of Service (years, months, days):

	Active:    03  04  17
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (4)	Behavior:  1.25 (4)		OTA:  2.58

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, GCM

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:

961113:	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.  

961113:	Counseling:  Applicant advised that he failed the 21Oct96 physical readiness test by failing the body fat percentage (measured at 23, weight at 188 and height 68.5) 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).

970408:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $598 per month for 2 months, extra duty for 45 days, reduction to RMSN.  Forfeiture, extra duty and reduction suspended for 6 months.  No indication of appeal in the record.

970410:	Vacate forfeiture, extra duty and reduction awarded at CO's NJP dated 8Apr97.

970504:	Civil Conviction:  Duval County Courthouse for violation of (1) using license from another state while Florida license suspended (2) driving while license suspended/revoked.
Sentence: Fine $100.00, jail for 1 day/1 day credit.

971203:	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.  

971203:	Counseling:  Applicant advised that he failed the 18Nov97 physical readiness test by failing the body fat percentage (height: 68, weight: 184, body fat: 23) 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).

980326:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0645-0930, 21Feb98.
	Award: Forfeiture of $100 per month for 2 months, restriction for 30 days, reduction to RMSA.  Restriction and reduction suspended for 6 months.  No indication of appeal in the record.

980326:	Retention Warning:  Advised of deficiency (Failure to go to the appointed place of duty on 21Feb98.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
980610:	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.  
 
980610:	Counseling:  Applicant advised that he failed the 19May98 physical readiness test by failing the body-fat composition (height: 69, weight: 206, body fat: 23) 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).

981019:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of weight control failure.

981019:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

981023:	Commanding officer recommended discharge with honorable by reason of weight control failure.  Commanding officer's comments (verbatim): (1) RMSN (applicant) is unsuitable for further military service due to exceeding body fat standards for the third time in less than two years.  He has been counseled both formally and informally about his failure to maintain body fat standards.  He has also had several minor problems with getting to work on time.
	(2) Navy doctors have excused RMSN (applicant) from any meaningful remedial PRT for virtually his entire tour here.  His major medical complaint has been lower back pain.  The Naval Hospital prepared to process his case for a physical evaluation board, but has suspended action pending the outcome of his administrative separation processing.
	(3) His performance of work tasks, strictly speaking, has been very good, but his overall performance has been marred by minor unauthorized absences and PRT failures.  His performance of duty prior to reporting to this command was excellent.  After carefully weighing all the factors, I recommend you discharge him with a characterization of Honorable.  RMSN (applicant) has waived his right to an administrative board and does not object to separation.

981104:	Commander, Naval Base, Jacksonville directed the applicant's discharge 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 981124 general (under honorable conditions) for weight control failure (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 the applicant’s issue, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  However, 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.  No such error or injustice is evident in the applicant’s service record.  Also, the Board has no obligation to change the applicant's discharge in order to allow he to go back to school.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  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. 

The following is provided for the applicant’s edification.  As previously stated, the Board is authorized to consider post-service factors in the recharacterization of a discharge (E).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group) and certification of non-involvement with civil authorities (police records check in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided only some documentation of continuing education.  The applicant’s efforts need to be more encompassing than those provided.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023