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

ex-CTTSN, USN
Docket No. ND03-00805

Applicant’s Request

The application for discharge review was received on 20030402.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040303.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/PHYSICAL STANDARDS, authority: NAVMILPERSMAN, Article 3620260.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To Whom It May Concern.

I am requesting a discharge upgrade due to prolonged command discrimination that let to intolerable stress.  I was originally discharged for failure of the PRT - the Navy weight standards.  This has been given to many sailors as an honorable discharge.  The discharge of General Under Honorable has created difficulties in me receiving my Montgomery GI Educational Payments and the Illinois Veteran’s Grant thus continuing a process of unjust stress.

When I arrived at my unit, it was just after completing my Navy Basic Training Program, so I was in my top physical condition.  When I entered Navy Basic Training, I was on the weight control program.

My assigned roommate, I was told, was a “trouble sailor” and it was suggested by my command not to befriend her.  We got along well as roommates. I did not do any behavior that was not well within Navy regulation and [never witnessed her do anything that would suggested other than proper military conduct.  Unfortunately, she was also close, if not over the Navy weight standards.

I became a friend with several Marines on the base.  My friends were told not to associate with me because I was a “trouble sailor.”  My Marine friends informed me that my commander called their commander and that I was “off-limits” to them.  I had been invited to the Marine Corp Ball, and was told that if I continued to see my marine friends that I would he brought up on charges in a Captain’s Mast. I was given no reason as to why this was occurring.

I was sent to Captain’s Mast for driving without insurance.  I do agree that I was wrong to drive without insurance, so I accepted the punishment.  However, upon reflection, to be charged with three different articles under UCMJ, seemed a bit excessive.  A month later, a male sailor was driving drunk without insurance and got into an accident. He was given extra duty.  This appearance of favoritism was very commonplace in my command.

When I was planning to get married to another sailor, my fiancé was called into my Commander’s office and he was informed that I was “irresponsible" and he strongly recommended that my fiancé reconsider his plans.

When I failed my first PRT in November 1994, I was sent to the medical unit.  The doctor informed me that at that time I was pregnant and that the PRT was invalid.  The Commander stated that since I did not give the command notice of the pregnancy prior to the PRT, that the PRT failure would remain in my file.  I, unfortunately, miscarried my child.  I overheard my chief tell others in the command that I had faked my pregnancy and miscarriage just to pass the PRT.

After I got married, my husband had a toy gun that upon first glance appeared real.  I locked myself out of my car and requested that security assist me in unlocking my car. When they saw the toy gun, they stated that I. should not keep it in the vehicle since it appeared real.  When I returned to my unit, I was informed that I would he given a Captain’s Mast for having a concealed weapon in my vehicle.  I did go to JAG to dispute the charges.  JAG suggested that the charges were erroneous and that I should request a Court Martial.  After my JAG officer listened to my Commander, he informed me that going to a Court Martial would not be in my favor.  I did not understand these proceedings since I was only 20 years old at the time.  My husband and his Commander informed my Commander that it was indeed his toy gun, however, my Commander had decided to continue with pursuing Court Martial if I was not willing to accept Captain’s Mast.  So on the advice of my counsel, I did. At 29 years old. I now recognize that it was poor advice and that the JAG officer was more concerned with the interests of the Command rather than the interests of me, his client.

In 1995, I was sent to the medical unit to be counseled on my weight.  As shown by the attached document, this was just prior to my next scheduled weight in.  My command provided an atmosphere that purposefully set me up to fail my weight standards.  I was never sent to any formal programs to assist with my weight, even though I had requested to be sent to such a program.

The January 31, 1995 evaluation clearly demonstrates the command focus on my weight issue.  They state, ‘she lacks the persistence and motivation required to adhere to military standards as evidence by her most recent PRT failure.”  Additionally, “With personal initiative, she should be able to correct her deficiencies...’  This demonstrates two issues that were prevalent in my command, first, that only the weight mattered - I seem to lack initiative even though I fully performed all my assigned duties.  Second, I was expected to improve myself even though this area was a noticeably difficult issue for me.

My Enlisted Performance Evaluations clearly demonstrate my downward attitude due to the stress that I daily endured.  None of my evaluations discuss poor performance or abilities, just that I was unfit to be in the Navy due to my ongoing weight issues.

I request that my discharge upgraded to an Honorable Discharge reflect my performance in the Navy.  My Command’s unjust bias and discriminatory practices towards sailors who had weight issues created a hostile work environment.  The ongoing problems of receiving benefits that I paid into and deserve for my performance are a continuation of the injustice that I already received.

I served the Navy proudly and honorably and would appreciate that service recognition. An upgraded discharge would reflect that the Navy appreciated my services

Respectfully,

A_ T_ (Applicant)”

Documentation

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

DD Form 2366, dated June 23, 1992
Memorandum, dated February 7, 1995
Telephone consultation, dated February 8, 1995
Memorandum, dated April 14, 1995
Letter to Bureau of Personnel from Applicant, undated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910618 - 920610	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920611		Date of Discharge:  950807

Length of Service (years, months, days):

	Active:    03  01  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  58

Highest Rate:  CTTSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.35 (4)	Behavior:  3.25 (4)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, N&MCOSR (2), JMU

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PHYSICAL STANDARDS, authority:  NAVMILPERSMAN, Article 3620260.

Chronological Listing of Significant Service Events:

931105:	NJP for violation of UCMJ, Article 90 (2 specs): (1) Willfully disobeyed a lawful order given by superior commissioned officer on 931016, to wit: give her BEQ room key to IS3 W_ so he could drop it off at the main BEQ, (2) Willfully disobeyed a lawful order give by a superior commissioned officer on 931016, to wit: turn in her two car and two BEQ room keys to the senior watch officer, violation of UCMJ, Article 91: Willfully disobeyed a lawful command by a superior petty officer, on 931017, to wit: not to drive her vehicle until liability insurance was purchased, violation of UCMJ, Article 92: Willfully disobey a lawful general instruction on 931017, to wit: NAVCOMMSTAJAPANINST 5800.2, Chapter 3, Section 1, Article 303, paragraph (2) dated 910412, by wrongfully operating and allowing others to operate her vehicle without proper insurance.
	Award: Restriction for 45 days, reduction to CTTSN.  No indication of appeal in the record.

931202:	Placement on Mandatory PT Program/counseling (First Cycle Failure – Nov 93):  Applicant formally evaluated as not meeting the Navy’s minimum physical fitness standards and advised that to remain eligible for continued service she must participate in the Mandatory PT program regimen and that failure to cooperate in and complete the regimen may constitute grounds for separation processing.

950413:	NJP.  No further information found in service record.   [Extracted from Enlisted Performance Record.]

950222:	Placement on Mandatory PT Program/counseling (Second Cycle Failure – Nov 94):  Applicant formally evaluated as not meeting the Navy’s minimum physical fitness standards and advised that to remain eligible for continued service she must participate in the Mandatory PT program regimen and that failure to cooperate in and complete the regimen may constitute grounds for separation processing.

950807:	DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of physical standards.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950807 with a general (under honorable conditions) for physical standards (failed to meet the minimum prescribed physical readiness (PRT) 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).

Issue 1.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  The Applicant’s service was marred by two non-judicial punishments (NJP’s), and two Physical Readiness Test failures.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

Issue 2.  The Applicant’s allegations, that she was denied assistance and counseling, do not overcome the Board’s presumption of regularity in the conduct of governmental affairs in this case.  The Applicant’s records indicate she was afforded the appropriate due process during the processing of her case.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for keeping within Naval Physical Fitness Standards.  Relief denied.  

Issue 3.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The following is provided for the edification of the applicant.  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 civilian life subsequent to leaving naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence pertaining to her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3620260, SEPARATION OF ENLISTED PERSONNEL BY REASON OF WEIGHT CONTROL FAILURE 

B.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 21 Dec 94 until 02 Oct 96, Article 3420440, 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