FOR
 ex-ABHAN, USN
ND07-00087

Current Discharge and Applicant’s Request:

Application Received:  				20061026
	Characterization of Service:		
	Reason for Discharge:			WEIGHT CONTROL FAILURE
	Discharge Authority:			MILPERSMAN 3620250
	Duty Assignment/Command at Discharge:	US NAS KEFLAVIK ICELAND

Applicant’s Request:	
	Characterization change:			
	Narrative Reason change:	 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  Condition was a disability

Decision:

By a vote of  the Characterization shall   .	
By a vote of  the Reason for Discharge shall  SECRETARIAL AUTHORITY.

Date of Decision:					20070830
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Discussion

Decisional Issues:

Issue 1 ():  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the discharge process and an inequity in the Applicant’s characterization of service.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 01 Sep 98 until 05 Dec 01, MILPERSMAN Article 1910-170, separation by reason of weight control and/or physical readiness test failure, outlines the proper procedure for discharging a member by reason of weight control failure.  The Board’s review of the record left substantial doubt in the minds of the Board members that the process was properly conducted.  The record contained no indication of administrative remarks/counseling or placing the member on a command-directed physical conditioning program.  An administrative remarks/counseling is mandatory following either the first or second PRT failure.  The Board did not find a reference to the member’s statement of rebuttal or consent to the separation action. Additionally the commanding officer’s endorsement did not include a summary of action taken by the command, reference to the member’s progress or lack thereof during the command directed physical conditioning program, nor counseling/retention warnings following the Applicant’s first or second PRT failure.  The Board found the discharge process improper.  Based upon the improper processing the narrative reason for discharge shall change to “Secretarial Authority”.  
With regards to the characterization of service The MILPERSMAN defines “HONORABLE” service as: “When the quality of the member’s service generally met the standard of acceptable conduct and performance for naval personnel.”  The Board found no negative evaluations, counseling’s or retention warnings in the Applicant’s record.  Furthermore, the Applicant’s commanding officer’s letter to the discharging PSD directed his discharge “under Honorable conditions”.  This statement created substantial doubt in the minds of the board members as to the CO’s intent.  The board determined that relief is warranted based on an inequity in the Applicant’s characterization of service.    

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19941130 - 19950516  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				19950517
Years Contracted:  				
Date of Discharge:				19980910
Length of Service
	Active:					03 Yrs 03 Mths 24 Dys (does not exclude lost time)
	Time Lost During This Period:		

Education Level:  				
Age at this Enlistment:  				
AFQT:  						54
Highest Rate/Rank:				ABHAN

Performance Evaluation Averages (number of marks):
						Performance: N/A Behavior: N/A OTA: N/A

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, OVERSEAS SERVICE RIBBON (2), FIRST GOOD CONDUCT MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

19970502:	PRT results:  weight 217 lbs, 22% body fat (1st failure).

19971112:	PRT results:  weight 239 lbs, 28% body fat (2nd failure with unsat run time).

19980430:	Section E, question 4d and e; based on medical examination this member is medically authorized to participate in the PRT with the exception of run/walk and swim, command directed physical conditioning program (with restrictions).  

19980502:	PRT results:  weight 240 lbs, 28% body fat (3rd failure, waiver of 1.5 mile run).

19980612:	Administrative Remarks:  Applicant advised of third official PRT failure.

19980623:	Applicant notified of his intended administrative discharge by reason of weight control failure with the least favorable characterization of service as General (under honorable conditions).  No Administrative board entitlement as a result of less than six years of service.

19980623:	Applicant acknowledged his impending administrative discharge and waived his rights to speak to counsel, electing only to receive copies of the discharge package.

19980629:	Commanding Officer, US Naval Air Station Keflavik notified Bureau of Naval Personnel of the Applicant’s administrative separation “under Honorable conditions” and his transfer to TPU Norfolk for processing. 

Elements of Discharge:  [INVOLUNTARY]

Date Notified:	19980623
Reason for Discharge	
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:	19980623
Rights Elected at Notification:
              Consult with Counsel	
              Obtain Copies of Documents	
              Submit Statement (date)	
              Administrative Board	
              GCMCA Review	

Separation Authority (date):	COMMANDING OFFICER, U. S. NAVAL AIR STATION KEFLAVIK (19980629)
              Reason for discharge directed:	WEIGHT CONTROL FAILURE
              Characterization directed:	UNDER HONORABLE CONDITIONS
Date Applicant Discharged:	19980910

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				10
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
	Other Documentation (Describe)		 Department of Veterans Affairs decision (9 pages)

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 01 Sep 98 until 5 Dec 01, MILPERSMAN Article 1910-170, SEPARATION BY REASON OF WEIGHT CONTROL AND/OR PHYSICAL READINESS TEST FAILURE.

B.  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 V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval 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.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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