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

 ex-AR, USN
Docket No. ND04-00708

Applicant’s Request

The application for discharge review, received 20040324, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229.  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.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/FAILED MEDICAL/ PHYSICAL PROCUREMENT STANDARDS, authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To:  Naval Council of Personnel Boards

My name is D_ B_ S_, my social security number is (deleted).  I originally went to Naval Boot Camp at RTC Great Lakes, Illinois on November 2, 2002.

During the medical processing, My hearing in my right ear failed the audiology test.  They are willing to gave me a waiver for my slight hearing loss.  I informed them that I had some pain in my right ear, I was unexpectedly processed for discharge.  My character of service is uncharacterized (Entry level position).  My reentry code is RE-4 due to their opinion of my ear pain.  They advised me to see a civilian doctor and sent me home.  I was discharged December 2, 2002.

Due to my financial situation, I was able to finally afford to see a specialist on July 3, 2003.  I went to see a audiologist and a otolaryngology to check my ears to find out what caused the ear pain.  Upon further examination the doctor found out that I had a Temporomandibular disorder.  A temporary disorder of the jaw that affects the ear and causes pain.  This is the result of the specialist’s examination.  My ear pain is caused by the disorder and not related to my hearing loss.

I want to appeal and change the status of my discharge to honorable so that I can go back in the U.  S.  Navy.

- The findings in RTC of my ear pain was wrong.
- They discharged me without further examination
- The doctor that check me did not check me thoroughly.
- The specialist that was suppose to check my ears only reviewed the audiology report.
- I did see a civilian doctor who is an otalaryngology and got a second opinion.
- The doctor’s findings was different form the Navy’s.
- His finding about the ear pain is caused by temporomandibular disorder of the jaw.
- My ear pain is not related to my hearing loss.
- The final result after being examined by a civilian specialist showed no abnormalities of my ear canal and tympanic membraine.

Enclosed is the audiology test along with the letter of the otolaryngology doctor about his findings.  I also included the definition and description of the temporomandibular disorder.  I also included the document from RTC, Great Lakes on what on their findings were before my discharged.

I respectfully request you to review my case, records and documents, and notify me of your decision.

Sincerely,
D_ B_ S_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

2.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized discharge to that of Honorable.

The FSM served on active service from November 4, 2002 to December 2, 2002 at which time he was discharged due to Failed medical / physical procurement standards. 

The FSM, based on submittal of the application, request a records review for an upgrade of the current Un-Characterized discharge, stating he was discharged due to right ear pain after failing a hearing test. He goes on to explain that he was told they could waiver the hearing loss, but has there was pain he was considered a failure and discharged.

Since his discharge the FSM has been seen by medical specialist that have determined that the right ear pain was caused by Temporomandibular joint disorder and is considered temporary and un-related to the hearing loss.

Based on this the FSM requests a change of the current discharge to Honorable so that he may return to the military.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,”

Documentation

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

Applicant’s DD Form 214
One page of medical record from Applicant’s service
One page of medical record, dated June 27, 2003
Letter from Kaiser Permanente, dated December 12, 2003 (2 pages)
Appointment of Veterans Service Organization as claimant’s representative, dated March 3, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020816 - 021103	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  021104		Date of Discharge:  021202

Length of Service (years, months, days):

	Active:    00  00  29
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA			Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/FAILED MEDICAL/ PHYSICAL PROCUREMENT STANDARDS, authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

Chronological Listing of Significant Service Events:

021112:	Chief, Bureau of Medicine and Surgery reports Applicant does not meet established physical standards due to hearing loss and recommended standards not be waived.

021118:	Entry Level Medical Separation evaluation: Diagnosis:  Hearing loss, not correctable to Navy standards.

021121:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) characterization by reason of defective enlistment and induction due to failed the medical/physical procurement standards.

021121:	Applicant advised of 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.

021125:	Commanding Officer directed discharge with an uncharacterized service by reason of defective enlistment and induction due to failed medical/physical procurement standards.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was awarded an uncharacterized discharge on 20021202 for defective enlistment and induction due to failed medical/physical procurement standards (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The Applicant states, “My hearing in my right ear failed the audiology test.  They are willing to give me a waiver for my slight hearing loss.  I informed them that I had some pain in my right ear, I was unexpectedly processed for discharge.”  The Applicant may believe that his ear pain was the impetus of his discharge proceedings.  However, the record clearly indicates that the Applicant had a hearing loss not correctable to Navy standards and competent medical authority recommended his deficit not be waived.  The Applicant failed medical standards.  Relief denied.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization.  The Applicant's service record did not contain any unusual circumstances during his less than a month in the military to warrant a change of discharge to "honorable."  

Issue 2.  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/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  Therefore, relief is denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB and is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until PRESENT, Article 1910-130 (formerly 3620280), Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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