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

  ex-SN, USNR
Docket No. ND05-00058 

Applicant’s Request

The application for discharge review was received on 20041006.  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 20050107.  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:  UNDER HONORABLE CONDITIONS (GENERAL)/Other physical/mental conditions - obesity, authority: NAVMILPERSMAN, Article 3620200.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“To whom it may concern:

I enlisted in the U.S. Navy Reserve on 22 December 1986 after attending college for one semester.  I was having difficulty meeting the continuing financia1 obligations of my education and was hoping to apply for a Secretary of the Navy appointment to the Naval Academy.  The Navy at that time was promoting its SAM program as a means to gain assistance in tuition or admission to the academy.  I was enrolled in an ROTC program at my college at the time, and was contacted by a Navy reserve recruiter.
I enlisted as a SAM recruit to attend recruit training in the summer of 1987 with guaranteed follow on training to commence immediately after boot camp.  I subsequently attended another semester of college in the spring of 1987.  I planned to enroll for the following fall semester alter recruit training.  I attended boot camp from May until July of 1987 as a member of drill company 920 at RTC/NTC San Diego.  During my recruit training I was made aware of the fact that my follow on training would not commence immediately after boot camp, but would in fact be delayed.  This posed a problem as I was planning on attending college in the fall.  I then elected a split training option.  I returned home in July of 1987.  In August of 1987, I injured my right hand, lacerating the flexor tendons of the index, middle and ring fingers.  This injury and the subsequent TWO repair operations precluded my attending college in the fall.  I again enrolled in the spring of 1988, but was unable to complete the semester due to my injury and subsequently dropped out of college.  I was made aware in the summer of that year that an opportunity to attend Southern Methodist University on an athletic scholarship was possible.  I applied to, and was accepted by Southern Methodist, in may of 1988 for the following fall semester.  I immediately set about a course of training for the fall football season.  During this time I began to attend rescheduled drills at time Navy and Marine Corps Reserve center in Amarillo, Texas.  I attended these drills in an effort to receive on the job training in my chosen rate as Yeoman with Petty Officer J_ H_.  My rescheduled drills were approved in advance by Petty Officer H_ and Lt. Commander W_ P_ W_.  In June of 1988, I was informed by the reserve center medical petty officer J_ B_ B_, that I was being placed inn remedial exercise program due to excess weight.  Please bear in mind that I planned at this time to play Southwest Conference football as an offensive lineman in time fall, as a means to facilitate my continued education.  I continued attending drills (both rescheduled and regularly scheduled) throughout my enlistment.  On 8 January 1990, I was made aware of a proposed action of administrative separation from the Navy reserve.  I elected to consult with counsel concerning this separation On 20 January 1990, I consulted with Lt. D_ I_, a JAG attorney appointed to review the material concerning my separation.  Dazing consultation with Lt I_ I stressed my concern that my discharge would be honorable.  I informed him that I hoped to someday attend law school and even perhaps enter politics.  After consultation with the Jag attorney, I left the reserve center.  To the best of my recollection I performed no more drills after that date.  In time subsequent months I returned to the reserve center on one occasion and asked about my discharge - Receiving no information, I requested a copy of my service record from the Navy Reserve Personnel Command in New Orleans.  I received a copy of the record on microfilm.  I did riot view the record immediately and subsequently lost it.
Over the following years, I received Bachelor of Science Degrees in both Mass Communications and Biology.  I worked and attended college to facilitate my education.  In the fall of 2003, I made application to and was accepted by the Texas Panhandle Law Enforcement Academy.  As part of my enrollment I was asked to provide a copy of my discharge.  I returned to the reserve center in Amarillo asking how to acquire this documentation.  I made application to the United States Archives and in the following months received the record.  I was shocked to discover that tire entries concerning my discharge were made only on E-32 Administrative Remarks forms.  On the form that I signed dated 08/JAN/90, an entry was wade stating that I was to be discharged with en HONORABLE DISCHARGE.  This entry was dared 7/MAR/90 almost three months after my consultation with Lt. I_.  The entry was signed by Commander W_.  The entry was marked VOID and a additional E 32 form was attached dated 7/MAR/90 that stated I was discharged on that date with a GENERAL DISCHARGE (Under Honorable Conditions).”

Documentation

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

Copy of 2 pages from service record book, dtd 1-8-90 and 7 Mar 90
Letter from Applicant, (2 pages) dtd 9/13/04
Copy of SMU Office of Admissions Report of College Credits, (2 pages) dtd 5/24/88
Transcripts from West Texas A & M University, (3 pages) dtd Jan 07, 2004
Copy of “Who’s Who Among Students in American Universities and Colleges”, not 	dated
Copy of Criminal Records Check, Texas Department of Public Safety, (2 pages) Jul 15, 	2003
Copy of Declaration of Psychological and Emotional Health, dtd 12-22-03
Copy of Certificate of Completion from Amarillo College, dtd August 30, 2004
Copy of Panhandle Regional Law Enforcement Academy certificate of course 	completion, dtd August 27, 2004
Copy of Amarillo College, Criminal Justice Programs certificate of completion, 27 	August 2004
Copy of Texas Tech University Graduate School letter of admission, dtd June 22, 2004
Copy of Texas Tech University Registration and Billing Information, dtd 07-06-04

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  861222		Date of Discharge:  900307

Length of Service (years, months, days):

	Active:    00 02 00
	Inactive:  02 14 12

Age at Entry:  19			Years Contracted:  8

Education Level:  13			AFQT:  87

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (3)		Behavior:  2.90 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Other physical/mental conditions - obesity, authority:  NAVMILPERSMAN, Article 3620200.

Chronological Listing of Significant Service Events:

861219:	Applicant’s Enlistment Physical.  Height 73 inches, weight 225 pounds.  
		Applicant qualified for USNR. 

861222:	 Applicant briefed on Navy’s Health and Physical Readiness Program as 
set forth in OPNAVINST 6110.1B .  Applicant’s signature to the following statement:  “I understand all members of the Navy, except those excused for medical reasons, shall attain and maintain a condition of health and physical readiness consistent with their duties.  I understand remedial training will be required for those who fall below prescribed standards of physical fitness and body fat.  Continued failure over a reasonable period of time to show progress in meeting minimum Navy standards, when there are no medically limiting circumstances, shall result in consideration for an administrative separation.  I understand in-service and retention/re-enlistment standards are more stringent than those of initial entry.”

870518:	Applicant reports to NTC San Diego, CA for active duty training.

870520:	Naval Regional Medical Center Branch Clinic, NTC, San Diego, CA Recruit screening examination and review of medical examination and history conducted this date in compliance with Manual of the Medical Department, Article 15-47.  All significant defects, if any, have been evaluated and have been determined to be non-disqualifying.  

870718:	Applicant released from active duty training.  Character of service is honorable.  Narrative reason: USNR- Expiration of term of obligated service.  

870816:	N & MCRC, Amarillo, Texas Medical Department statement in Applicant’s medical record: “Member absent weekend training due to injured hand”.

880627:	N & MCRC, Amarillo, Texas Administrative Remarks.  “I, P_ A_ T_ [Applicant], having been medically diagnosed as obese, overfat, or having failed any portion of the Navy’s Physical Readiness Test (PRT), will participate in an extended drill on Saturdays from 1630 to 1730.  I [Applicant] further understand that this is a mandatory extension of the drill and failure to participate will result in an unsatisfactory drill for that month.”  Additional comments: “I [Applicant] am required to participate in the Remedial Level I Exercise program in accordance with ref a. (OPNAVINST 6110.1C), I shall not be allowed to participate in ACDUTRA until such time that my body fat meets the Navy’s requirements.”

880627:	N & MCRC, Amarillo, Texas Medical Department reports Applicant’s body fat at 27.0%, height 73 inches, abdomen 43 inches, neck 18 inches.

880720:	N & MCRC, Amarillo, Texas Medical Department statement in Applicant’s medical record: “Member did not show up for drill and also not for remedial level I PFT.”
8808:	Applicant did not attend drill weekend. [Specific dates not found in record.]

8809:	Applicant did not attend drill weekend.  [Specific dates not found in record.]

8810:	Applicant did not attend drill weekend.  [Specific dates not found in record.]

881119:	Applicant did not attend drill weekend.  

881210:	Applicant did not attend drill weekend

890121:	N & MCRC, Amarillo, Texas Medical Department reports Applicant’s body fat at 30%, height 74 inches, abdomen 45.5 inches, neck 18 inches.

890321:	N & MCRC, Amarillo, Texas Medical Department reports Applicant’s body fat at 33%, height 74 inches, abdomen 48 inches, neck 18 inches.

891209:	N & MCRC, Amarillo, Texas Medical Department reports Applicant’s body fat at 35%, height 74 inches, abdomen 49.5 inches, neck 18 inches.

 900105:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of obesity as evidenced by failure to meet body fat standards.  

900108:	Applicant advised of rights and having elected 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.  Applicant did not object to this separation.

900108:	Counseling entry:  “I understand that this action is taken due to my failure to conform to the Navy’s fitness standards.  Having been placed in a remedial program on 27 June 1988 I have not come within Navy standards since that time.”

900221:	Commanding Officer recommended discharge under honorable conditions (general) by reason of convenience of the government due to other physical/mental conditions - obesity.  Commanding Officer’s comments (verbatim): “Comments and recommendation of the commanding officer:  SN T_ enlisted in the Sea/Air/Mariner Program (Split Trainer) and has not completed his initial active duty for training (ADT) requirements.  Due to his obesity, SN T_ has not met the physical qualifications for the second phase of initial ADT.  Completion of initial ADT is mandatory in order for SN T_ to be eligible for mobilization.  It has been 31 months since SN T_ completed the first phase of initial ADT and it is determined that SN T_ will not qualify for the second phase of initial ADT.  SN T_ has missed 3 scheduled PFTs due to obesity.  He has been counseled and he has made no progress.  His weight is over 300 pounds, an accurate reading cannot be provided because the limit on command scales is 300 pounds.  Since placement on the Navy’s Physical Remedial Program his body fat percentage went from 27 to 35.   When counseled, SN T_ stated that he will not lose weight because he plans on playing football with Southern Methodist University (SMU).  He has constantly made this statement since being placed on the Remedial Program.  But to date he has not provided documentation to indicate acceptance at SMU.  He is currently residing and working full-time in this area.  SN T_ constantly misses drill weekends and it is believed this is to avoid remedial training held on Saturdays of drill weekends.  When he does attend he has not shown any progress.  He cannot perform the minimum situps and 1 and 1/2 mile run/walk.  SN T_ elected to submit statements but as of this date (over 30 day’s from electing his rights) he has not submitted any statements.  SN  T_ was also afforded the right to consult with counsel.  On 20 January 1990 he consulted with LT D_ C.  I_, JAG, USNR, at N&MCRC Amarillo, TX.  An administrative separation is strongly recommended.

900307:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of convenience of the government due to other physical/mental conditions - obesity.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900307 under honorable conditions (general) for convenience of the government by reason of other physical/mental conditions - obesity (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.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider the Applicant’s discharge proper and equitable.  The Applicant contends that he signed a form on 19900108 stating that he was to be discharged with an honorable discharge.  The record shows that Applicant was properly notified by his Commanding Officer on 19900105 of the intended recommendation for discharge under honorable conditions (general) by reason of obesity. The record contains a voided entry that is administratively crossed-out, dated 19900307 stating that the Applicant was discharged with an honorable discharge.  The following entry in the record dated 19900307 states that the Applicant was discharged with a general discharge (under honorable conditions) for the convenience of the government (due to obesity).   Relief is not warranted.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by his obesity and his failure to make progress while assigned to Navy’s Physical Remedial Program with his body fat percentage increasing from 27% to 35%.  Also, the Applicant has failed to attend 7 drill weekends.   The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

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 related to his 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 15560A), Change 6, effective 11 Jan 89 until 13 Dec 89, Article 3620200, SEPARATION OF ENLISTED PERSONNEL FOR CONVENIENCE OF THE GOVERNMENT.

B.  Naval Military Personnel Manual, (NAVPERS 15560A, effective 15 Jun 87 until 11 Oct 90, Article 3620250, SEPARATION OF ENLISTED PERSONNEL AT THE CONVENIENCE OF THE GOVERNMENT ON THE BASIS OF OBESITY.

C.  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.

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

E.  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