Author: CAP
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Docket No. MD05-00882

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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-00882

Applicant’s Request

The application for discharge review was received on 20050419.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area.  The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  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 Under Honorable Conditions (General) by reason of unsatisfactory performance - failure to conform to weight standards.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document to the Board:

“1.  My separation from the USMC should be upgraded to an Honorable discharge because I feel the characterization of my discharge was based primarily on the outcome of an Article 15 proceeding dated 31 Jan 90 that I received just 6 months prior to my separation.  This was an isolated incident in a little over 48 months of service.

2.  Further, per MCIO P1500.44B, Sec. 1 Para H.4, “A Marine may receive a general discharge under honorable conditions if his service was characterized by significant negative aspects reflected in his performance of conduct.  This type of discharge is normally awarded to Marines whose average Proficiency and Conduct marks fall below 3.0 and 4.0 respectively.”  I feel the record shows the this was not the case as evidenced by the following facts.

3.  Upon separation my average Proficiency and Conduct Marks were 4.3 and 4.2 respectively.  This average includes a single entry of 3.3 and 2.9 awarded as a result of my Art. 15 proceeding.  Prior to this entry, my average Pro/Con marks would have been 4.4 (4.375) and 4.4 (4.385).  In either case my Pro/Con marks were well above the 3.0/4.0 level mentioned by the guideline referenced in MCIO P1500.44B above.

4.  Further, though my discharge was for failure to meet Marine Corp Weight Control Standards, prior to being placed on the weight control program I had never failed a Marine Corps PFT or fell out of any regular PT formations or training exercises.  This was also the case during my assignment to the weight control program.  In fact, I easily completed a battalion 20-mile forced march just 4 days before my separation (I participated voluntarily after taking my exit physical).

5.  Per the Weight Control Progress Charts in my SRB, while on the battalion weight control program – with the exception of the first 3 weeks, I was able to keep my weight under the initial 188 lbs that I weighed when I was put on the program.  My average weight while on the program was 181 lbs just 6 pounds over the max of 175 lb for my height of 67.5” (with 176 lb being the lowest point).

6.  Additionally, there were at least 5 weeks where I was able to keep my body fat down under the 18% required to request an alternative weight waiver.  (Also, I was never offered an opportunity to take the more accurate Water Displacement test for determining my true body fat percentage).

7.  As evidence of the true nature of my service, here is a list of some of my accomplishments during the 48 months I served:
•	I received a Letter of Recommendation for graduating at the top of my class in Supply School (MOS3051) on 13 Jun 88 two years before my separation.
•	I graduated from the Marine Corps Basic Electronics School (MOS 2800).
•	I successfully completed 4 MCI correspondence courses.
•	I qualified as a Rifle Expert and regularly qualified with a 1^st class PFT score.
•	I was also awarded the Marine Corp Good Conduct Medal on 3 Jun 89 (while I was on the weight control program) – just one year before my separation.
•	As further evidence of my physical fitness – from Sep 87 to Jun 90 and while on the weight control program, I earned my Black Belt in Sohng Ahm Taekwondo under Chief J_ S_, USN (Retired) on 1 May 89.  As his senior student I also regularly helped with teaching classes at the Naval Air Station’s Wind & Sea Enlisted Recreation Center during this same period.

8.  Finally, per the letter 1910 CO/MCSFBn dtd 23 May 1990, found in my SRB, even my battalion XO Lt. Col. J. E. L_ recommended that I receive an Honorable Discharge.  However, I feel the characterization of my service for separation purposes was based solely on the Pro/Con marks (3.3/2.9) I received immediately following the above referenced NJP proceedings – without regard to the nature of my previous service for the 3 ½ years prior to the NJP proceedings.”

Documentation

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

Character Reference ltr from J. B_ K_ dtd June 22, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19850730 – 19860602		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19860603		Date of Discharge:  19900619

Length of Service (years, months, days):

Active:    04  00  17  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  00 days
	Confinement:		  00 days

Age at Entry:  18 

Years Contracted:  6

Education Level:  12				AFQT:  81

Highest Rank:  LCpl			MOS:  3051

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (9)		Conduct:  4.2 (9)   

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Good Conduct Medal, Rifle Expert Badge, Letter of Appreciation

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

UNDER HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance-Failure to conform to weight standards (administrative discharge board not required), authority:  MARCORSEPMAN, Para 6206.1

Chronological Listing of Significant Service Events:

870722:	Retention Warning:  Advised of deficiencies (Failing to Maintain a sufficient balance in my checking account which resulted in my Command receiving notification of a dishonored personal check being returned for collection due to insufficient funds), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890425:	Medical evaluation requested for Applicant due to Applicant’s physical appearance not meeting acceptable Marine Corps standards.  His weight is 188 lbs with a 20.5% body fat.

890503:	Applicant acknowledges his condition is not the result of a pathological disorder, that he is overweight and that he has been placed on the battalion’s weight control program.

890503:	Retention Warning:  Advised of deficiencies (Being placed on weight control program.  I understand that I am 10 lbs over weight IAW Marine Corps weight standards.  I understand I must lose 4 lbs per month for a period of six months to achieve my weight goal of 175 lbs.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890519:	Retention Warning:  Advised of deficiencies (Unsatisfactory performance while participating on the weight control program for the month of May.  I understand that I was deficient by 7.5 lbs in my weight lost for the month.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890615:	Retention Warning:  Advised of deficiencies (Unsatisfactory performance while participating on the weight control program for the month of May.  I understand that I was deficient by 2 lbs in my weight lost for the month.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891107:	Retention Warning:  Advised of deficiencies (Unsatisfactory performance while participating on the weight control program for the month of October.  I understand that I was deficient by 6 lbs in my weight lost for the month.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

891113:	Supply Officer, Marine Corps Security Forces Battalion, Atlantic, recommended the Applicant not be granted any further extension on the weight control program and that he be process for immediate separation.

891115:	Medical Officer evaluation:  Applicant’s statistics are:  
	Height:  67”, Weight:  188lbs, Body fat: 22%, Present condition:  Overweight.

900122:	Applicant extended on weight control program until 900501.

900131:	NJP for violation of UCMJ, Article 92:  
Specification:  At MCSFBn, Lant, 1840, 891222, knowingly failed to obey the National Fire Protection Act-1 of 890201, by intentionally pulling a fire alarm knowing the alarm would be false.  
Violation of UCMJ, Article 134:  
Specification:  At MCSFBn, Lant, on or about 1840, 891222, was drunk and disorderly in command which conduct was of a nature to bring discredit upon the armed forces.  
	Award:  Forfeiture of $405.00 per month for 2 months and reduction to E-2  Not appealed.

900319:	Retention Warning:  Advised of deficiencies (Unsatisfactory performance while participating on the weight control program during the period from 900101 to 900316.  I understand that I was deficient by 5.25 lbs in my weight lost for this period.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900522:	Applicant notified of intended recommendation for an honorable discharge with the least favorable characterization of service possible as under honorable conditions (general) by reason of unsatisfactory performance due to failure to conform to weight standards.  

900522:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

900523:	Commanding Officer, Marine Corps Security Forces Battalion, Atlantic, recommended Applicant’s honorable discharge by reason of unsatisfactory performance due to failure to conform to weight standards.  The factual basis for this recommendation was the result of PFC K_’s medical evaluation on November 15, 1989 and PFC K_’s unsatisfactory progress on the command weight control program.

900605:	GCMCA, Commanding General, Marine Forces Atlantic, directed the Applicant's under honorable conditions (general) by reason of unsatisfactory performance due to failure to conform to weight standards.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900619 by reason of unsatisfactory performance - failure to conform to weight standards (A and B) with a service characterization of under honorable conditions (general).  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 Applicant contends that his discharge should be upgraded because he feels that his characterization of service was based “primarily on the outcome of an Article 15 proceeding.”  The Applicant further contends that his proficiency and conduct averages were above 3.0/4.0 respectively.  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’s service was marred by six retention warnings and nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ.  Violations of Article 92 of the UCMJ are considered serious offenses.  Separation under these conditions generally results in characterization of service under other than honorable conditions or under honorable conditions (general).  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that he, “never failed a Marine Corps PFT,”  and “was able to keep [his] weight under the initial 188 lbs. that [he] weighed when [he] was put on the program.”  The Applicant acknowledged on 19890503 that he was overweight and that his condition was not the result of a pathological disorder.   He failed to reach his goal weight until 19900122, at which time he received an extension until 19900501.  On 19900522, he was notified of the intention to recommend his separation.  The evidence of record shows the Applicant exceeded Marine Corps standards for over 12 consecutive months.  Therefore, the Board found that the Applicant’s discharge was neither improper nor inequitable.  Relief denied.

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 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 sufficient post-service documentation for the Board to consider.  Relief denied.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 920309, except for subparagraph 1, which was retroactively changed by ALMAR 57/93, effective 920310).

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey an order/regulation.

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.