ex-STG2, USN
 
Current Discharge and Applicant’s Request

Application Received: 20090317
Characterization of Service Received:    
Narrative Reason for Discharge:    PHYSICAL STANDARDS
Authority for Discharge:   MILPERSMAN  [PHYSICAL STANDARDS]

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20020605 - 20020917  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20020918	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080424	Highest Rank/Rate:  STG2
Length of Service:   Year(s)     Month(s)   07 Day(s)
Education Level:  	AFQT:  74
Evaluation Marks:	Performance:  3.8 (4)	Behavior:  2.3 (4)	OTA:  3.54

Awards and Decorations (per DD 214):	    ESWSI

Periods of UA/CONF:  	NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “GENERAL (UNDER HONORABLE CONDITIONS)”
	  “PHYSICAL STANDARDS”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:		Service/Medical Record:  	Other Records:	

Related to Post-Service Period:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Substance Abuse:		Criminal Records:	
	Family/Personal Status:		Community Service:		References:	
              Additional Statements:
                             From Applicant:		From/To Representation:		From/To Congress member:	

                    Other Documentation:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 3 August 2005 until Present, MILPERSMAN Article 1910-170, SEPARATION BY REASON OF PHYSICAL FITNESS ASSESSMENT FAILURE.

B.  NAVADMIN 180/05, 271525Z JUL 05, PHYSICAL READINESS PROGRAM.

C.  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.

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

Applicant’s Issues

1.	Seeking educational benefits.
2.	Not allowed sufficient time to recover.

Decision

Date:  20101105		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PHYSICAL STANDARDS.

Discussion

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 the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service indicates that he failed five physical fitness assessments (PFA) in a four year period.  Based on the Applicant’s failure to comply with PFA requirements his command administratively processed for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review.  However, the DD Form 214 indicates the Applicant was administratively separated due to PFA failure and assigned a separation code of “JFT” indicating that he was not entitled to an administrative separation board.  The presumption of regularity of governmental affairs was applied in the absence of an administrative separation package.

:  (Nondecisional) The Applicant contends he was denied the Montgomery GI Bill because of his General (Under Honorable Conditions) characterization of service.  He is seeking an upgrade for purpose of obtaining educational benefits. 
The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Decisional) ()  .  The Applicant contends that he sustained permanent damage to his knee while stationed aboard the USS BENFOLD, which decreased his mobility, thereby causing an increase in his weight.  The Applicant is also opined that if he had been given the allotted time necessary to attend physical therapy he would have made a complete recovery.  The Applicant’s medical records does reflect that he was seen on numerous occasions for complaints of bilateral knee pain, was overweight and given self physical therapy exercises to perform twice a day.  
There is no evidence in the record or provided by the Applicant to support the contention that he was denied an opportunity to obtain physical therapy.  Moreover, the Applicant provides no documented information he notified his chain of command of his physical therapy appointments and was not allowed to obtain treatment.  The evidence of record indicates the Applicant was recommended for administrative separation based on his failure to meet the PFA requirements.  Based on a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB concluded there was sufficient evidence to support administrative separation of the Applicant due to PFA failure and that a change in the narrative reason is not warranted in light of the evidence of record mentioned supra, which indicates the Applicant had five PFA failures in a four year period.  The Board also concluded that there was an inequity in the characterization of the Applicant’s service since he did not receive any retention warnings nor was he subject to disciplinary action due to misconduct during this enlistment.  Accordingly, the Board voted unanimously to upgrade the characterization of service to Honorable.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain PHYSICAL STANDARDS.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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.

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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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