ex- LCDR, 

Current Discharge and Applicant’s Request

Application Received: 20160524 and 20161118
Characterization of Service Received: 
Narrative Reason for Discharge:  WEIGHT CONTROL FAILURE
Authority for Discharge:  SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Appointment:  19960515	Age at Appointment:  
Years Contracted:  Indefinite	Highest Rank/Rate:  LCDR
Date of Discharge:  20140804 (per BCNR finding 20160926)	
Length of Service:  16 years qualifying service
Education Level:  	

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  NMCAM NAVY "E" JSCM ESCWS               

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  

SCM:  		

SPCM:  

CC:  

Retention Warning Counseling:  

- 20111123:	For failure of 20091003 PFA.

- 20111125:	For failure of 20100515 PFA

- 20111202:	For failure of 20110608 PFA

- 20121211:	For failure of 20111001 PFA

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	

ADDITIONAL STATEMENTS

	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that the separation was in error because final closure had not occurred in his LOD disability processing appeal.
2.	The Applicant desires reinstatement to duty with the U.S. Naval Reserve and continuation of the LOD disability process which was unjustly truncated by the GCR separation.
3.	The Applicant contends the separation was improper because the Board did not consider evidence that NOSC Ebensburg improperly backdated notice of the Applicant’s alleged PFA failures as a pretext for an otherwise invalid basis for separation.
4. 	The Applicant contends the separation was improper because the Board failed to properly consider several technical defects in the separation process.
5.	The Applicant request that the NDRB reverse the improper separation recommended by the BOI.
6.	The Applicant request that the NDRB reinstate the Applicant to service in USNR.
7. 	The Applicant request that the NDRB recommence the MEB/PEB process to reevaluate his LOD injuries.

Discussion

Date:  20170207		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

The Applicant's record of service included:

Based on the three failures of the body composition assessment in four years, the command was notified of administrative separation and required to show cause before a Board of Inquiry for retention.  

Issue 1:   The Applicant contends that the separation was in error because final closure had not occurred in his LOD disability processing appeal.  The record documents that the Applicant sought medical attention on 20 August 2008 for “complaint of chronic Achilles tendinitis and plantar fasciitis of both feet for years duration” which had been previously treated with physical therapy, orthotics, and nonsteroidal anti-inflammatory drugs with minimal relief.  At that time, he was recommended for surgical options.  Surgery was performed on the left foot in February 2010.  On 08 September 2011, the medical notes indicate that a Dr. L_ stated that the Medical Evaluation Board (MEB) should be postponed until after additional surgery.  Notes dated the same day indicate that the Orthopedist at Walter Reed National Military Medical Center concurred with Dr. L’s assessment.   The MEB was terminated on 02 December 2011, and the Applicant was expected to complete the recommended surgeries and would be reevaluated for a Medical Board after the prescribed recovery period if needed.  

The Navy Physical Readiness Program is governed by OPNAVINST 6110.1 which requires a semi-annual physical fitness assessment consisting of a medical screen, body composition assessment (BCA), and physical readiness test (PRT).  If a waiver is granted for part or all of the PRT, members must still pass the BCA unless it is also medically waived.   All Navy personnel are expected to comply with the Navy Physical Readiness Program to include waivers as appropriate for the semi-annual physical readiness test (PRT) and/or body composition assessment (BCA) even when there case is being considered by the MEB.  Members cannot be separated except for reasons of misconduct while there case is being considered by the MEB.
  
The Applicant was properly referred to a MEB following two waivers of the PFA; however, the Applicant’s medical board was terminated until the surgeries were complete and an evaluation was made on whether he would return to full duty.  Service members are expected to comply with body fat standards unless they have a BCA waiver which is reevaluated during each semi-annual readiness assessment.  The records documented only one BCA waiver for the 2008-1 cycle, and the Applicant did not provide any documentation of additional BCA waivers.  OPNAVINST 6110.1 specifically states that the inability to exercise is not a valid reason for a BCA waiver.  Although the instruction does allow that BCA waivers may be granted when there is an inability to obtain an accurate weight or measurement, there is no documentation that the Applicant sought or received a BCA waiver for this reason.  The Board did not find the Applicant’s separation was in error because final closure had not occurred in his LOD disability processing appeal.  

:  The Applicant desires reinstatement to duty with the U.S. Naval Reserve and continuation of the LOD disability process which was unjustly truncated by the GCR separation.  The NDRB has no authority to revoke any discharge or dismissal.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490.  Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm.

Issue 3:  The Applicant contends the separation was improper because the Board did not consider evidence that NOSC Ebensburg improperly backdated notice of the Applicant’s alleged PFA failures as a pretext for an otherwise invalid basis for separation.   The Navy Physical Readiness Program is governed by OPNAVINST 6110.1 in which enclosure 2 paragraph 1b allows PFA notifications to be documented any time prior to the member acquiring a third failure as sufficient time for all administrative actions specified in the instruction.  The Applicant’s separation letter from his Commanding Officer cites five failures (2011-1, 2011-2, 2012-1, 2012-2, and 2013-1).  Unauthorized absences from a scheduled test count as a failure.  The Applicant states that the letter was allegedly backdated 25 November 2011 but not mailed until 07 December 2011.  The Applicant had three failures after that date which exceeds the number needed for separation.  Per OPNAVINST 6110.1, individual members are responsible to participate in a year-round physical fitness program to meet Navy fitness and BCA standards; review and verify accuracy of PFA data in PRIMS within 60 days of the PFA cycle; maintain an updated annual PHA; complete a NAVPERS 6110/3 for every PFA cycle; and fulfill all FEP requirements in the event of a PFA failure.  The NDRB found that the Applicant received adequate notice, and the record indicates that he had not passed a single BCA since his deployment in 2009 nor were there any waivers for the BCA during that period.  

Issue 4:  The Applicant contends the separation was improper because the Board failed to properly consider several technical defects in the separation process.  The Applicant cited errors in fitness reports and a missing signature on the separation notification letter.  Official results from the semi-annual fitness assessments are maintained in PRIMS, and it is the service member’s responsibility to review and ensure the accuracy of the data.  Errors on the fitness reports and a missing signature by the Commanding Officer on the separation notification letter did not prejudice the applicant’s case or deprive him of any due process.  In fact, errors in properly documenting physical readiness scores on the fitness reports resulted in higher marks and retention recommendations than the Applicant would have rated.  

Issue 5-7:  The Applicant requests that the NDRB reverse the improper separation recommended by the BOI, reinstate the Applicant to service in USNR, recommence the MEB/PEB process to reevaluate his LOD injuries. The NDRB has no authority to revoke any discharge or dismissal, reinstate a person into the Naval Service, initiate a MEB, or change the reason of discharge to a physical disability.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490.  Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge.  Therefore, the awarded characterization of service shall  HONORABLE, the narrative reason for separation shall  WEIGHT CONTROL FAILURE with a corresponding separation code of GCR .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.
 
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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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 Disabled American 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 their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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.

Employment/Educational Opportunities: 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.

Reenlistment/RE-code: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.