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Docket No. MD99-00442

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

 ex-PFC, USMC
Docket No. MD99-00442

Applicant’s Request

The application for discharge review, received 990203, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 991206.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/INVOL DISCHARGE WEIGHT CONTROL FAILURE, authority: ALMAR 57/93 [CMC 161805ZFEB93].

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Extracted from DD Form 149 dated 9 June 1998

1.  My problem with weight was due to a physical disability from an injury received during my term of enlistment.  I suffered repeated ankle injuries starting in basic training until my discharge which was not detected until my final examination.  This discharge is preventing me from pursuing a career in the Montgomery Police Department, prevents me access to the G.I. Bill and reflects pourly on my character.  See attachments.

Extracted from statement from applicant dated 23 June 1998

2. I am requesting that my discharge be upgraded from General Under Honorable Conditions to an Honorable Discharge.

The reason for my separation from the United States Marine Corps was due to Weight Control Failure.  However, this discharge that I have received reflects poorly on my character and prevents me from accomplishing those goals that I have set forth for my life.  Under this current discharge I do not have access to the Montgomery GI Bill, without which it will be extremely difficult to get a higher education despite the financial aid options provided by many institutions and the Federal Government.

During the term of my enlistment I served honorably, being trained as a Rifleman and then being selected for the United States Marine Corps Security Forces, which provide security and counterterrorist support for American assets worldwide.  Though I am not at full liberty to discuss the scope of my duties, during my period of service I was involved in the support of operations conducted by the United States Air Force, the United States Navy and the British Royal Marine Commandos with whom I often worked.  I was also involved in a variety of operations during the Bosnia and Somalia Peacekeeping Missions, although I did not actually serve in a direct capacity.

It was during this time that I received numerous injuries to my left ankle.  These injuries have resulted in chronic pain, and being rated as a disabled veteran with 10% disability.  These injuries were not properly diagnosed during my active service until my final physical that I received prior to termination of my obligation.  It is my firm belief that it was this condition, not properly diagnosed and treated, which resulted in my inability to maintain the physical standards set forth by the Marines.

Currently I am employed as a Security Officer and Executive Protection Specialist for the Southern Poverty Law Center.  In that capacity I provide close-in security for several of its executives, receive advanced training in deterring the threat of domestic terrorism, and face that same threat side by side with my teammates and the men and women of this organization.

Recently I have decided to pursue a career in law enforcement with the Montgomery Police Department.  I am also seeking enlistment in the United States Naval Reserve as a Master at Arms, the physical standards of which I currently meet.  Though I may be able to get into the Reserves with a waiver, I will not be eligible for employment as a Police Officer until I receive an Honorable Discharge from the United States Marine Corps.

The reasons for my discharge were neither unfair nor unwarranted.  At the time, I was not within the standards that I needed to uphold in order to continue with my enlistment.  However, my discharge was also due to a physical condition, not any form of punitive action.  I feel that it is simply unfair to be held back from accomplishing my goals because of it.

Again let me convey my deepest thanks and appreciation to the members of the Board for your consideration of my request.  I look forward to your reply.

Documentation

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

Copy of DD Form 214
Two copies of DD Form 149
Letter from applicant dated June 23, 1998 9 (also used as issue 2)
Character reference dated July 12, 1998
Character reference dated June 16, 1998
Character reference dated June 23, 1998

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		920817 - 921026	COG

Period of Service Under Review:

Date of Enlistment:  921027		Date of Discharge:  940907

Length of Service (years, months, days):

	Active:    01  10  11
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  77

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (6)			Conduct:  3.7 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/INVOL DISCHARGE WEIGHT CONTROL FAILURE, authority:  ALMAR 57/93 [CMC 161805ZFEB93].

Chronological Listing of Significant Service Events:

910608:	Body Fat 25%.

910619:	Enlistment Medical Examination: Weight: 207 pounds.

910717:	Weight: 203 pounds. Body Fat 24%.

910731:	Weight: 200 pounds.  Body Fat 24%.

910830:	Weight: 198 pounds.  Body Fat 23%.

920413:	Body Fat 25%.

921114:	Acute Care Services: A: First degree left ankle sprain.

930107:	Branch Medical Clinic: First degree right ankle sprain.

930118:	Acute Care Services:  A:  Anterior talo-fibula tendonitis,

930119:	Podiatry Clinic: Follow up and MRP evaluation.  Diagnosed with anterior talo-fibula tendonitis on 18Jan93.  A: Resolving anterior talo-fibula tendonitis.

930120:	Podiatry Clinic:  Unresolving anterior talo-fibular tendonitis right foot.

930120:	Physical therapy:  Right ankle pain.  R/O extensor tendinitis.

930129:	Branch Medical Clinic: Follow up for tendonitis in right foot.
  
930202:	Physical therapy: A: Resolving tendonitis, right ankle sprain.

930205:	Follow up tendonitis right ankle.

930212:	Follow upn on tendonitis right ankle.

930225:	Branch Medical Clinic: A: Mild extensor digitorim _______ tendonitis B/L.

930312:	Branch Medical Clinic: A:  r/o sinus tarsi syndrome B/L.

930327:	BMC:  A: Ankle sprain ______.

930524:	Ankle pain for 6 months.  A: Chronic musculoskeletal complaints.

930601:	NSF Diego Garcia:  Right ankle sprain.

930702:	Resolving sprain with repeated ______/______.

930916:	Counseled for deficiencies in performance and conduct. Specifically, fully understands the definition and use of deadly force and rules of engagement as it applies to this unit and British Indian Ocean Territory, Diego Garcia.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

930917:	Counseled for deficiencies in performance and conduct. Specifically, failure to meet Marine Corps weight standards.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

931006:	Health Services Department: Chief complaint: Pain to left ankle.

931012:	Medical Department: Weight 200.  A: Stress fx distal tibia.

931103:	Health Service Department:  A:  (1) ____ heat exhaustion (mild), (2) stress fracture left ankle (clinically resolved).

931109:	Counseled for deficiencies in performance and conduct. Specifically, failure to successfully complete a 12 mile conditioning march on 931102 and meet Marine Corps physical fitness standards.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

931211:	Health Services Department:  Here for psych eval.  A: Adjustment disorder with depressed mood.  P: Recommend DAPA referral and evaluation.

931213:	Health Services Department:  Weight 203 pounds.

940107:	Health Services Department: Weight 205 pounds.  Follow up due to right ankle sprain.

940110:	Resolving 3^rd degree sprain.

940113:	Resolving sprain.

940114:	Naval Support Facility: Weight 212 pounds.

940308:	Health Services Department:  Weight 214 pounds.  A:  overuse syndrome.  Shin splints.  Limited duty for 7 days.

940310:	Medical Department:  A:  Resolved overuse syndrome.  Weight: 216 pounds.

940412:	NJP for violation of UCMJ, Article 123A:
Specification: Write seven checks totaling $297.82, which were returned due to insufficient funds.
Awarded reduction to PFC.  Not appealed.

940412:	Counseled for deficiencies in performance and conduct. Specifically, failing to make proper travel arrangements to return from leave by 940405.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

940419:	Health Services Department: A: Soft tissue injury.

940421:	Medical department: A: Soft tissue injury.

940620:	Counseled for deficiencies in performance and conduct. Specifically, failure to meet Marine Corps weight standards.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

940710:	Emergency care and treatment:  Chief complaint:  pain to left ankle.  Assessment:  Left achiles tendonitis.  Modify duty until 17Jul94.

940725:	Health Services Department:  A:  Recurrent achilles tendonitis.  Limited duty for 7 days.  No running.

940728:	Counseled for deficiencies in performance and conduct. Specifically, failing to account for government property and failing to report the loss of ammunition in a timely manner.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

940801:	Medical Department:  A:  Achilles tendonitis resolving.

940803:	COMMARFORLANT directed the applicant's discharge under honorable conditions (general) by reason of Unsatisfactory Performance – Failure to conform to weight standards.

940804:	Counseled for deficiencies in performance and conduct. Specifically, sleeping while assigned to guard ammunition.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

940817:	Sick call:  A:  Chronic left ankle lat-sprain.  Limited duty 1 week.

940824:	Follow up ankle.  A: Chronic left ankle sprain.  Limited duty chit.  Weight: 210 pounds.

940829:	Separation physical:  Weight: 210 pounds.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940907 under honorable conditions (general) due to weight control failure (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

In the applicant’s issues, extracted from his statements, the Board found that the applicant received a general discharge because of his overall record. The applicant received one nonjudicial punishment and had six adverse page 11 counseling entries. The applicant was found physically qualified for separation.  His performance while assigned to the weight control program was unsatisfactory.  The Board concluded that no relief was warranted in this case.  

Pertinent Regulation/Law (at time of discharge)

A.  ALMAR 57/93 [CMC 161805ZFEB93] revised enlisted separation policy for weight control failure.  It cancelled paragraph 6206.1 of the Marine Corps Separation and Retirement Manual.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A1300/A9321/A9217/A9223/A0145