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

FOR OFFICIAL USE ONLY

ex-AE3, USN
Docket No. ND06-00639

Applicant’s Request

The application for discharge review was received on 20060412.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined that the Applicant’s discharge was improper and inequitable.  The Board’s vote was unanimous that the characterization of service and narrative reason for separation shall change to:  HONORABLE/WEIGHT CONTROL FAILURE, authority: MILPERSMAN 3620260 and BUPERS MSG R170003ZJUN96, Separation Code “GCR.”

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

	Propriety: Not advised of rights or offered counsel

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19880930 - 19890125	COG
	Active:   USN	19890126 - 19920715	HON

Period of Service Under Review:

Date of Enlistment:  19920716		Date of Discharge:  19961220

Length of Service (years, months, days):

	Active:    04  05  05  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  3 days
	Confinement:		  None

Age at Entry:  25

Years Contracted:  4 (10-month extension)

Education Level:  12				AFQT:  74

Highest Rate:  AE2(AW)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (4)			Behavior:  4.0 (4)		OTA:  4.00
Performance:  3.5 (2)			Behavior:  1.5 (2)		OTA:  3.57

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  First Navy Good Conduct Medal ending 93Jan25, Meritorious Unit Commendation Medal, National Defense Service Medal, Enlisted Aviation Warfare Specialist.

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

920716:	Reenlisted this date for a term of 4 years plus a 10-month extension.  New EAOS: 19970515.

950615:	Counseling:  Applicant advised that she did not meet the physical readiness standards due to failing to participate in the official PRT and/or failing to meet body fat standards, and placed on the command’s sponsored physical conditioning program.  Advised if this is the third failure in a four year period, you will be mandatorily processed for administrative separation.

950623:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award:  Forfeiture of $75.00 per month for 2 months, extra duty for 10 days, and a punitive letter of admonition.  No indication of appeal in the record.

950623:	Retention Warning:  Advised of deficiency (unauthorized absence for 3 days), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950815:	Abbreviated Limited Duty Medical Board Report.  Diagnosis:  Tibial Stress Fracture.  Circumstances of injury:  Left ankle twisting injury in 1991, now has non-union distal tibial stress fracture, requiring aggressive physical therapy and probably intramedullary rod placement as per Orthopedic Surgeon.  Treatment plan: Continue aggressive rehab therapy and Orthopedic evaluation probable intramedullary rod placement 10/95.  Limited duty for 6 months.

951208:	Applicant returned for 4 month limited duty follow up.  Unfortunately she has not responded to physical therapy or any other conservative treatment.  She is to undergo IM rodding of left tibia on 951213.  She will have a long rehab period and will be in a long-leg cast for 3 months approximately.  A/P: Non union fracture of left tibia.  Extend limited duty to 12 months.  Rehab as per Ortho.  Follow up regularly.  If no resolution - Med Board.

960122:	Counseling:  Applicant advised that she has accumulated her third physical readiness program failure in a 4-year period due to exceeding height/weight and body fat standards taken not more than 10 days and not less than 48 hours prior to official Physical Readiness Test (PRT).  At the time, my percent body fat measured 41%, weight was measured at 231; my height measured at 70”.

960123:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general by reason of weight control failure as evidenced by your failure to achieve prescribed physical readiness standards outlined in OPNAVINST 6110.1 and the guidelines of Article 3420440.

960130:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

960326:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had failed to achieve the prescribed physical readiness standards outlined in OPNAVINST 6110.1 and the guidelines of MILPERSMAN Article 3420440, and recommended retention.

960507:	Retention Warning:  Advised of deficiency (You were determined by Capt S_, USAF, BSC, Physical Therapy, 72nd MDG, Tinker AFB, OK to have been non-compliant with the physical therapy regimen requested on your behalf by Maj B_, USAF, MC, Orthopedic Surgery Department.  Specifically you missed physical therapy appointments scheduled every Tuesday and Thursday at 1400 on 20 Feb, 27 Feb, 29 Feb.  In addition, you missed a follow-up appointment with Capt S_ on 960307.  You never called the physical therapy clinic to cancel or reschedule the appointment despite a message left for you at your home by Capt S_.  You never advised your chain-of-command of your required appointments to ensure that your duty schedule did not conflict with your therapy sessions.  Your actions are not those expected of a second class petty officer.  You have jeopardized your health and wasted the resources of the 72nd MDG.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  Applicant desired to make a statement.

960509:	Commanding Officer concurred with the findings of the Administrative Board that the Applicant be retained in the Naval Service.  Commanding Officer’s comments:  “AE2 H_’s failure of the body fat portion of the PRT correlated with a severe ankle injury she sustained while in the line of duty.  This injury prevented AE2 H_ from participating in an adequate exercise regimen.  The result of this inability to exercise appears to have been a major contributor to the member being out of weight standards.  AE2 H_ has been ordered into a medically approved conditioning program which she will maintain as her ankle injury improves.  She is expected to make a full recovery.  Recommend that AE2 H_ be allowed to fully recover from her injury while maintaining her assigned exercise regimen.  Upon completion of her physical rehabilitation, she will be required to conform with Navy guidelines for body fat and physical readiness.  In the event her injury does not heal as expected, recommend that AE2 H_ be granted a Medical Evaluation Board.”

960617:	BUPERS concurred with Commanding Officer’s and administrative discharge board’s recommendation to retain Applicant.  Applicant is not eligible for reenlistment per NAVADMIN 071/93.  Discharge Applicant at EAOS of 960715 following completion of transition processing.  Enter the following on DD Form 214:
	Block 24:  Assign character of service per MILPERSMAN Chapter 36.
	Block 25: MILPERSMAN 3620260 and DTG this MSG.
	Block 26: Assign per BUPERINST 1900.8, as appropriate.
	Block 27: Assign per BUPERINST 1900.8, as appropriate.
	Block 28: Weight Control Failure.

961014:	NJP for violation of UCMJ Article 111 (Drunken driving) and 112 (Drunk on duty).  Award: Reduction in rate and punitive letter of reprimand.  [Extracted from NAVPERS 1070/609, Enlisted Performance Record.]

961119:	Medical Record Report, J_ S. M_, LtCol, USAF, MC: Final diagnosis/recommended treatment:  Chronic left leg pain, status post intramedullary rodding for left tibia fracture.  The condition appears stable and it is not significantly likely to improve or diminish.  Since the patient cannot perform her duties as an aircraft electrician mate, she is being considered at this time for Medical Evaluation Board to determine her eligibility for continued worldwide duty.

961126:	Request to extend Applicant’s limitation until Med Board completed 4-6 months.

961203:	Medical Board Report action recommended:  Refer to PEB.

961220:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of misconduct due to pattern of misconduct, authority:  MILPERSMAN 3630600.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19961220 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was improper and inequitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant requests relief based on propriety, contending she was “not fully advised of [her] rights of appeal or to obtain counsel,” and based on her desire to obtain benefits.  The Board instead found that the Applicant warrants relief based on the propriety of the administrative separation proceedings for pattern of misconduct.

The Applicant reenlisted on 19920716 for a term of 4 years plus a 10-month extension, making her EAOS 19970515.  During the course of this enlistment, her command properly notified her on 19960123 of intent to recommend discharge by reason of weight control failure.  The Applicant requested an administrative discharge board, which unanimously found that she failed to achieve the prescribed physical readiness standards but recommended retention.  On 19960509, the Commanding Officer agreed with the administrative discharge board’s recommendation and forwarded his recommendation and comments to BUPERS.  On 19960617, BUPERS concurred and directed that the Applicant be retained.  At the same time, BUPERS determined that the Applicant was not eligible for reenlistment and directed that she be discharged at her EAOS of 19960715.

The EAOS of 19960715 is consistent with the Applicant reenlistment term of 4 years and is in line with MILPERSMAN 1160-040.  This article stipulates that commanders shall cancel extension agreements, prior to its operative date, when the member is no longer recommended for reenlistment.  Since the Applicant had not started serving in the extension period, the extension was not operative.  Based on this analysis, the Board unanimously concluded that the Applicant should have been discharged at her adjusted EAOS of 19960715, as directed by BUPERS.  The Applicant’s subsequent administrative processing and separation by reason of misconduct due to pattern of misconduct is therefore improper.  As such, the Applicant’s characterization of service must be based on averaging the individual trait averages of all evaluations during the current enlistment.  In the Applicant’s case, her trait average is above that required for the General discharge she received.  And so, her characterization of service is now inequitable.  Relief granted.

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 post-service accomplishments or any other evidence related to the 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 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

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

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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