Author: CAP
Last saved by: joyce.meeks
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Docket No. MD06-00254

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD06-00254

Applicant’s Request

The application for discharge review was received on 20051117.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061005.  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) by reason of weight control failure.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“The only issue in this case is that i should not have received a general under honorable conditions discharge solely for failing the weight control program of which I should never have been put on in the first place, as I was unable to participate physically due to a medical profile from a legitimate injury sustained while I was on official leave.  to deny this upgrade after having received my service connected disability rating for the same injury in question would cause the marine corps considerable embarrassment, particularly if I were to relate this affair to my congressman and to prospective marine corps recruits.”

“To Whom It May Concern:

I am writing this letter to explain why I was unjustly discharged from the Marine Corps with a General (under honorable conditions) discharge.  In January of 2000 I took eight days leave between MCT and my school in Pensacola.  On this eight-day leave I helped my father coach wrestling.  I was helping a wrestler and got thrown onto my shoulder and collarbone.  Immediately, I knew something was very wrong because I couldn’t move my arm or get up.  My father replaced my arm and I sat out the rest of practice.  Over the next few days I tried to let my arm heal itself I would wake up at night from the excruciating pain shooting through my arm.  I didn’t go to the hospital because I knew it would be taken care of in Pensacola.  When I arrived in Pensacola I went to medical and told them what happened.  They told me to take aspirin because it was just a sprain.  So I did what they suggested by taking aspirin and using my shoulder.  My shoulder still hurt.  After Pensacola I went to Okinawa, Japan.  There I realized my shoulder was feeling better.  Then when I was exercising I felt the pain again like my shoulder had come out.  I went to medical and they said since I only had a 1-year deployment that there wasn’t anything they could do and that I should wait till I got to my next duty station.  There I was led to believe by the doctors that I had sustained a broken collarbone.

When I arrived on Camp Pendleton they again told me it was just a strain and that I would get better.  By this time I had gained some weight because I couldn’t exercise like I was supposed to as a result of the pain.  My squadron then placed me on weight control.  Four months later, I checked into HMT-303 and started work there.  I was immediately placed on weight control and told to PT.  I did that to the best of my ability with little or no progress due to my shoulder pain.  A little over two years later I was placed on limited duty as per request from 22 Area Medical (Camp Pendleton) upon review of my medical records concerning my shoulder pain.  I was instructed not to PT or lift anything heavy.  This assignment came after 3 years and 10 months of going to medical about my shoulder.  My understanding was that I was supposed to be taken off weight control upon this assignment of limited duty.  My career in the Marine Corps was unfortunately cut short with my recent discharge for weight control failure.

I believe this demonstrates a blatant disregard for my personal welfare and that I have been unjustly treated.  I was discharged from the Marine Corps early because of my weight.  If I had been administered proper medical care in the beginning, something could have been done about my shoulder years ago and I would have been able to fulfill the physical requirements of my contract.  When confronted by my Sergeant Major and CO about my discharge I told them I did not want out and that I wanted to serve my term.  They still discharged me early with a General (under honorable conditions) discharge.  After serving over 4 years with no bad paperwork beyond my weight control I feel this was unfair.  Never once was I in trouble in my 4 years, never once did I do anything that wasn’t in keeping with the highest standards of the Navy and Marine Corps as shown in my Service Record Book.  I do not see the reason why I shouldn’t have been able to fulfill my contract and get out honorably.  I could still perform my job with efficiency and accuracy.  As a result of this discharge I have been denied my earned benefits from the state and federal government that would assist me in obtaining my Bachelor’s Degree in Forestry.  Furthermore, if I want my shoulder fixed I am going to have to pay for it now.  Please reconsider my discharge so I can receive the benefits that I feel I’ve earned while faithfully serving as a United States Marine.  Thank you for your consideration.

Sincerely,
[signed]
J_ E. R_(Applicant)”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member – 4) (3 copies)
Character Reference ltr from Cpl M_ R. B_, USMC, undtd
Character Reference ltr from Reverend R_ W. S_, Pastor, United Presbyterian Church, dtd January 9, 2004
Character Reference ltr from J_ N. R_ and C_ J. R_, Applicant’s parents, dtd January 11, 2004
Character Reference ltr from Sergeant V_ E. B_ III, USMC, undtd
Character Reference ltr from T_ L_, Executive Director, Mid-Illinois Big Brothers Big Sisters, dtd January 20, 2004
Service connected compensation ltr from Department of Veterans Affairs, dtd July 21, 2004 (5 pages)
Seven pages from Applicant’s medical record
Letter from Applicant, dtd April 23, 2006
Applicant’s discharge orders (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19981219 - 19990816	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19990817		Date of Discharge:  20031104

Length of Service (years, months, days):

Active:    04  02  18
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  5

Education Level:  12				AFQT:  79

Highest Rank:  LCpl				MOS:  6048

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Marine Corps Good Conduct Medal, National Defense Service Medal, Sea Service Deployment Ribbon, Meritorious Unit Commendation, Certificate of Commendation (Unit Awd), Letter of Appreciation, Rifle Sharpshooter Badge

*Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority:  MARCORSEPMAN 6215.

Chronological Listing of Significant Service Events:

980816:	Report of Medical Examination:  Measurements:  Height: 73 inches. Weight 229 pounds.

981219:	Report of Medical Examination:  Measurements:  Weight on 980816:  229:  Weight on 981219:  225 pounds.  Applicant found medically qualified.

990121:	Pre-service criteria waiver granted.

990816:	Pre-service district (weight) and criteria waiver granted.

000120:	Medical Entry:  Sick Call, Naval Hospital, Pensacola, FL, LT D. N_, PA-C, MSC, USNR:  Reason:  Left shoulder.  18 year old presented with S/P left shoulder injury while wrestling 2 weeks ago.  States shoulder was separated and reduced spontaneously.  Pt was evaluated and treated by ? facility and states that X-ray was negative and was Dx with separated left shoulder.  Shoulder was healing well until 3 days ago.  Pt started push/pull ups.  Now with pain and weakness.  No (illegible).
	Left shoulder negative swelling, redness or deformity.  (Illegible) increased pain upon (illegible).  Very mild palpable (illegible) joint.  Strength 3-4/5 anterior deltoid.  (Illegible).
A: Weakness left shoulder ? due to injury.
P: Run and strengthening exercise per shoulder hand out.
Limited duty for 2 weeks as directed i.e. no push/pull up.
Return to clinic recheck in 10-14 days.

000217:	Medical Entry:  (NATTEC Treatment), CAPT K. L_ MC, USN:  Wrestling with (illegible) in Dec 30^th.  Shoulder dislocated and father put it back in.  (Illegible) for 1 month and would not do push ups or pull ups (illegible).  Sent in (illegible) feels weak.  Observation:  negative atrophy, (illegible).  A:  (illegible) exam.  P:  FP, avoid pull ups when is to fatigued x 3 months.  F/W (illegible).

010205:	Counseling:  Advised of deficiencies in performance and conduct (Failing the physical fitness test.)  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010205:	Counseling:  Advised of deficiencies in performance and conduct (Failure to maintain Marine Corps weight standards (weight 254 pounds.  And 26% body fat; max weight and body fat by MCO 6100.10B is 209 pounds.  And 18% body fat.)  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011023:	Medical Entry:  22 Area Branch Clinic (ABC), MAG-39, LCDR T.W. H_, MC (FS), USNR:  Reason: Left shoulder.  S/P:  Wrestling throw landed on apex of left shoulder.  ? Left Clavicle Fx about 1 year ago with left shoulder ant dislocation reduced by wrestling coach.  Doing well for the last year.  Until yesterday when doing curl-ups (getting ready for PFT) felt “pop and had sensation of previous ant dislocation; Pt stopped and is here today for eval.
	O:  Left shoulder:  From (illegible) intenal rotation TTP over rotator cuff tendon and biceps tendon.  Mild tenting deformity and testal clavicle.  NTTP GH joint:  No instability, no apprehension.
	A/P:  (1) S/P AC Sep grade I, S/P shoulder dislocation/reduction 1 year ago.  Both with proper PT treatment.
	(2) Strain rotator cuff/Biceps tendon.  Pt consult for both.  Naprosyn 500 bid.  Limited duty for 30 days.  Follow up prn.

Not dated:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of February promotion period because of weight control.  Applicant chose not to make a rebuttal. 

020318:	Medical Entry:  Naval Hospital, Camp Pendleton, CA , LT J_ H. S_, MSC, USNR, Physical Therapist:  Reason:  Rotator cuff weakness.  S: Pt is a 21 year old with left shoulder dislocation and separation.  PMH: Jan00 – wrestling – dislocation (MOI).  C/O Pt unable to do pullups – c/o instability.   No (illegible) sxs.  Job – flight equip – issue gear with light lift.  No (illegible) injuries.  No limited duty.
	O:  TTP at SS tendon, (illegible).  Rom: nfl AU positive (illegible) and IR.  Strength: 4+/5 ER/ABD, 5/5 FF/IR.  Special test, negative (illegible).
A:  Pt presents with old dislocation, AL sep Left with residual R/C weakness.  Goal: (1) px free ROM, (2) increase (illegible) +1/5 grade ER/ABD.  (3) Pullup x 3 with (illegible) (in 1 month.  All).
	P: Pt to perform HER x 4 weeks for R/C stretch, R/C (illegible).  R/L scap stabes.  Follow up in 1 month (illegible).

020401:	Acknowledged understanding of eligibility but not recommended for promotion to Corporal due to weight control IAW MCO P1400.32C, (Par 1204.3W, as applicable, unless waived by appropriate authority.

Not dated:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of March/April/May promotion period because of weight control.  

Not dated:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April promotion period because of weight control.  

Not dated:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of June promotion period because of weight control.  

020605:	Counseling:  Advised of deficiencies in performance and conduct (Status on the Marine Corps BCP.  Applicant has not made reasonable progress and has failed to reach required body composition while on first assignment to this program.  Therefore, Applicant has been granted 90 days to meet the body composition standards set forth in MCO P6100.12 or make reasonable progress.)  Necessary corrective actions explained, sources of assistance provided, discharge warning issued.

020926:	Medical Entry:  22 ABC, MAG-39, evaluation with LT N. C_, MC (FS) USNR.  Reason: Left shoulder evaluation.  21 year old with chronic left shoulder pain – “hurts all over”.  Began 2 years ago when wrestling ? ANT dislocation – “coach put back in place”  Reinjured 10/01 when doing pull-ups – heard a “pop” and had pain upon pull up.  Has been on Naprosyn in past and seen P.T off and on ton x 1.5 yr.  Pain not changed.  Extremely limited in activity because of it and is overweight from decreased activity.
	PE:  (Illegible).  Inspection, no deformities (illegible).  Palp, positive TTP along A/C and anterior shoulder joint space (illegible).  Positive SS/IS TTP from all directions.  5/5 strength throughout though painful (illegible).  Sensation intact.
	A: (1) Rotator cuff weakness ?(illegible); A/C arthritis.  (2) Rule out instability.
	P: (1) Naprosyn 500 BID with food.
	(2) *CONT PT AS DIRECTED – pt has not been compliant beyond 1-2 appts.
	(3) Ortho c/s
	(4) Limited duty.

021022:	Medical Entry:  Orthopedics, Naval Hospital, Camp Pendleton, CA, R_ L_.:  Reason:  Left shoulder instability.  21 year old LCpl/AD/USMC 2 years left shoulder pain.  Got tossed during wrestling and landed on left shoulder.  ? dislocation reduced by Dad.  Thinks shoulder separated.  Has had P.T. to no avail. (Illegible) pain with back.
PE:  (Illegible) Left shoulder, no atrophy.  Positive popping (illegible), negative (illegible).
XX:  (Illegible) II AC (illegible), old.
A/P:  Probably SLAP (illegible).  (1) MRE with quad.  (2) Return to clinic upon MRI.

030916:	Report of Medical Assessment:  Question 11:  Since your last medical assessment/physical examination, have you had any illnesses or injuries that caused you to miss duty for longer than 3 days?  Yes, 8 months limited duty for recurring shoulder problems.  Question 15:  Do you have any conditions which currently limit your ability to work in your primary military specialty or require geographic or assignment limitations?  Yes, no heavy lifting.  Question 18:  At the present time, do you intend to seek Department of Veterans Affairs (VA) disability?  Yes, shoulder injury, ankle problems and tenitious.

031104:	DD Form 214:  Applicant discharged this date with a general (under honorable conditions) by reason of weight control failure, authority:  MARCORSEPMAN Par 6215.

Service Record Book did not contain the Administrative Discharge package. 
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031104 by reason of weight control failure (A) with a service characterization of general (under honorable conditions).  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 (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

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’s service was marred by a Physical Fitness Test failure, 5 nonrecommendations for promotion to Corporal and counseling for failing to make adequate progress in meeting weight goals.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The documentation and statements provided by the Applicant did not refute the presumption of regularity in this case. Nothing in the record indicates that the Applicant’s injury prevented him from complying with the Marine Corps’ weight standards.  There is evidence in the record indicating that the Applicant did not diligently pursue the medically prescribed regime of physical therapy for his injury.  The Board found nothing in the record to indicate that the determination that the Applicant’s conduct, which forms the primary basis for determining the character of his service, warranted a characterization of general (under honorable conditions) was inequitable.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits, not the Naval 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. 

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 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 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6215, WEIGHT CONTROL FAILURE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 01 September 2001 until Present.

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

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

D.  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 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