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Docket No. MD04-01470

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

ex-CPL, USMC
Docket No. MD04-01470

Applicant’s Request

The application for discharge review was received on 20040921.  The Applicant requests the 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Having a discharge listed as general, even though it is “Under Honorable Conditions”, has caused problems in seeking employment and trying to obtain money for college.  I have even tried to re-enter the military through the Naval Reserves and the Army National Guard.  Each time, the recruiters told me that my General Discharge would prohibit my enlisting.  I applied for a position as a local Police Officer, but was told that I must have an Honorable Discharge.  Both the Navy and Army recruiters told me that, based on what I told them (being discharged simply for having difficulties with the three mile run), I should have received an Honorable Discharge.  I never had any insubordination or disciplinary charges.  I feel that my faithful service deserves an Honorable Discharge.

As stated above in numbers 6 and 14, I am having difficulties in gaining employment in certain career fields due to the “General Discharge” and the “Unsatisfactory Performance”.  I sincerely and humbly request that my discharge be upgraded to Honorable.

Please!!!  The actual issue, referred to in item #6, was “failure to maintain Physical requirements” when I could not pass the 3 mile run portion of the Physical Fitness Test (PFT).” 

Documentation

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

Copy of the Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USMCR(J)		941123 - 951126	COG

Period of Service Under Review:

Date of Enlistment:  951127		Date of Discharge:  990817

Length of Service (years, months, days):

	Active:    03  08  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  94

Highest Rank:  CPL			MOS:  6022

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  4.5 (9)

Military Decorations:  None

Unit/Campaign/Service Awards: NDSM, GCM, SSDR, REB

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority:  MARCORSEPMAN Par. 6206.

Chronological Listing of Significant Service Events:

960724:	Counseled concerning deficiency, specifically, failure to maintain proper Physical Fitness Standards IAW MCO 6100.3J.  Advised of assistance available and corrective actions.  Discharge warning issued.

970707:	Applicant assigned to remedial physical training program. Applicant counseled concerning the responsibilities of the Remedial Physical Training Program (Applicant acknowledges by signature of the Remedial Physical Training Program Individual Responsibility Letter).

970804:	Applicant assigned to remedial physical training program. Applicant counseled concerning the responsibilities of the Remedial Physical Training Program (Applicant acknowledges by signature of the Remedial Physical Training Program Individual Responsibility Letter).

970821:	Medical Evaluation for Assignment to Remedial Physical Training Program.  Commanding Officer request a medical evaluation for Applicant in order to participate in a remedial physical training program

970821:	Medical Officer, Naval Hospital Cherry Point, examines the Applicant.  Applicant found to be medically fit for participation in a physical fitness program.

970926:	Applicant removed from the Remedial Physical Training Program after completing the 30 day assignment.   

980916:	Medical Evaluation for Assignment to Remedial Physical Training Program.  Training Officer (by direction) request a medical evaluation for Applicant in order to participate in a remedial physical training program. 

980916:	Medical Officer, Naval Hospital Cherry Point, examines the Applicant.  Applicant found to be medically fit for participation in a physical fitness program.

980916:	Applicant assigned to remedial physical training program. Applicant counseled concerning the responsibilities of the Remedial Physical Training Program (Applicant acknowledges by signature of the Remedial Physical Training Program Individual Responsibility Letter).

990507:	Medical Evaluation for Assignment to Remedial Physical Training Program.  Commanding Officer request a medical evaluation for Applicant in order to participate in a remedial physical training program. 

990507:	Applicant assigned to remedial physical training program. Applicant counseled concerning the responsibilities of the Remedial Physical Training Program (Applicant acknowledges by signature of the Remedial Physical Training Program Individual Responsibility Letter).

990510:	Medical Officer, Naval Hospital Cherry Point, examines the Applicant.  Applicant found to be medically fir for participation in a physical fitness program.

990511:	Squadron Training Officer letter to Squadron Legal Officer: “SNM [Applicant] has failed a Physical Fitness Test (PFT) every year for the last 4 years.  SNM failed a PFT in July of 1996 while assigned to MATSG-90.  As a result of failing a PFT SNM received a 6105 counseling in his Service Record Book and was assigned to remedial physical training.  Corporal G_ then failed a PFT in July of 1997, and again in September of 1998.  Both times he was assigned to remedial physical training.  SNM recently failed another PFT on 07 May 1999.  SNM is now on his fourth assignment to remedial physical training.  SNM does not have the qualities and traits of Marine NCO.

990520:	Counseled concerning deficiency, specifically, failure to maintain Marine Corps standards by failing a physical fitness test in accordance with MCO 6100.3J on 990430.  Advised of assistance available and corrective actions.  Discharge warning issued.

990708:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of unsatisfactory performance of duties.  The basis for discharge is “your [Applicants] numerous physical fitness test failures as evidenced by the two counseling entries on page 11 of your service record as well as your physical fitness test progress report beginning on 10 May 1999.”

990708:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990708:	Commanding Officer recommended discharge with a general (under honorable conditions) characterization of service by reason of unsatisfactory performance due to unsatisfactory performance of duties (failure to pass a physical fitness test).

990730:	SJA review determined the case sufficient in law and fact.

990730:	GCMCA, Commander, 2d Marine Aircraft Wing, advised the Commandant of the Marine Corps that the Applicant's discharge was directed with a general (under honorable conditions) by reason unsatisfactory performance of duties (failure to pass a physical fitness test).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980817 with a general (under honorable conditions) due to unsatisfactory performance due to unsatisfactory performance of duties (failure to pass a physical fitness test) (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).

The Veterans Administration determines eligibility for post-service benefits not the Navy 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.  Additionally, 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 on the propriety and equity of the discharge.  

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant failed a Physical Fitness Test every year for 4 years.  The Applicant was counseled for this deficiency, was determined to be medically fit for participation in a physical fitness program, and was assigned to the Remedial Physical Training Program each time.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps  and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, however, 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

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 any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 31August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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

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 view DoD Directive 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

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.