Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD06-00292

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

FOR OFFICIAL USE ONLY

 ex-Cpl, USMC
Docket No. MD06-00292

Applicant’s Request

The application for discharge review was received on 20051130.  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 20061025.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of service shall change to HONORABLE but that the reason for separation shall remain Weight Control Failure – involuntary discharge directed by established directive (no board entitlement), authority: ALMAR 57/93 [CMC 161805ZFEB93].

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“I am requesting that my discharge be upgraded to an honorable discharge.  I believe my discharge was inequitable because it was based on the weight standards.  I did not look overweight in uniform and my weight was not an issue in fulfilling the mission at hand.  My superiors for whom I served under wrote letters to that affect.  I am currently attending night school to acquire a business degree, and I do not have access to the G.I. bill.  I chose the Marine Corps to raise my station in life, and because I did not meet a weight number on paper I cannot use the money I invested in the G. I. Bill for education.  I am currently within six credits of my BSBM degree.”

Documentation

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

Applicant’s DD Form 214  (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19870123 - 19871006	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19871007		Date of Discharge:  19930126

Length of Service (years, months, days):

Active:    05  03  19  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  6 

Education Level:  12				AFQT:  73

Highest Rank:  Cpl				MOS:  6363

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (14) 			Conduct:  4.5 (14) 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksman Badge, Navy Unit Commendation, Meritorious Mast (3^rd Award), Joint Meritorious Unit Award (2^nd Award), Good Conduct Medal.

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

UNDER HONORABLE CONDITIONS (GENERAL)/Weight Control Failure - involuntary discharge directed by established directive (no board entitlement), authority:  ALMAR 57/93 [CMC 161805ZFEB93].

Chronological Listing of Significant Service Events:

900214:	Naval Hospital, Long Beach, CA:  The patient (Applicant) attended a counseling session on weight control conducted by a staff dietitian from the Clinical Nutrition Department.  The following written materials were provided and discussed: Basic suggestion for weight control and calorie content for fast foods.

900323:	Branch Medical Clinic, MCAS El Toro, Santa Ana, CA:  Weight Control Measurement. HT: 68 WT: 188 (Max 181) BF%: 18.1.  Recommend lose 2.25 lbs in 6 months (total 13 lbs).  188 to 175 lbs is a realistic goal.

900423:	Counseling:  Advised of deficiencies in performance and conduct (non- compliance to Marine Corps weight standards.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900423:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of April because of assignment to weight control.  Applicant chose not to make a statement.

900501:	Applicant promoted to Corporal.

900926:	Branch Medical Clinic, MCAS El Toro, Santa Ana, CA:  Weight Control Measurement. HT: 68 WT: 190 (Max 174) BF%: 24.2.  Plan: Weight reduction diet. Physical exercise program.  Weight monitoring. Dietary referral.  [Administrative error noted: Max weight should read 181 vice 174.]

900926:	Counseling entry: Applicant assigned to Weight Control Program.

901210:	Counseling:  Advised of deficiencies in performance and conduct (Unsatisfactory performance, failure to meet prescribed weight goals set forth by the medical officer, lack of self discipline, and excessive voluntary intake of food and/or drink.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910205:	Branch Medical Clinic, MCAS El Toro, Santa Ana, CA:  Weight Control Measurement. HT: 68 WT: 185 (Max 181) BF%: 20.6.  Recommend lose 10 lbs in 3 months.  Has 1st class PFT.

910807:	Branch Medical Clinic, MCAS El Toro, Santa Ana, CA:  Applicant seen for weight evaluation – 23 lbs over maximum weight.  HT: 68 WT: 204 (Max 181) BF%: 24.  No evidence of pathological disorder.  Plan: Weight reduction 4lbs per month over next 6 months. 1200 calorie ADA diet.  Weight monitoring monthly.

910815:	Acknowledged understanding of eligibility but not recommended for promotion to Sergeant for September 1, 1991 promotion because of performance of weight control program.  Applicant chose not to make a statement.

910828:	Branch Medical Clinic, MCAS El Toro, Santa Ana, CA:  Applicant seen for weight evaluation – previously on weight control.  HT: 68 WT: 195 (Max 181) BF%: 20.3.  Plan: Applicant fit to participate in weight control program.  Not due to pathological problem.  Follow previous weight control diet.

920414:	Counseling:  Advised of deficiencies in performance and conduct concerning failure to comply with MCO 6100.10A by not maintaining proper weight standards.  Also counseled concerning my unsatisfactory progress while assigned to the MALS-11 Weight Control/Military Appearance Program.  Weight goal is 181 lbs.  Current is 194 lbs.  This is third assignment to weight control.  IAW MCO 6100.10A and MCO P1900.1C Applicant will be processed for administrative separation.

920504:	Applicant waived the right to rebut page 11 entry date 920417.

920804:	Counseling:  Advised of deficiencies in performance and conduct concerning failure to comply with MCO 6100.10A by not maintaining proper weight standards also counseled concerning my unsatisfactory progress while assigned to the MALS-11 Weight Control/Military Appearance Program.  Weight goal is 181 lbs.  Current weight is 194 lbs.  This is third assignment to weight control.  IAW MCO 6100.10A and MCO P1900.1C Applicant will be processed for administrative separation.  Applicant chose to make a statement.

920813:	Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the JUL, AUG, SEP 92 Prom Qtr because of my assignment to weight control.  Applicant chose not to make a statement.

920917:	Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the OCT, NOV, DEC 92 promotion Qtr because of my assignment to weight control.  Applicant chose not to make a statement.

921002:	Commanding Officer, Marine Aviation Logistics Squadron 11, recommended to Commanding General, 3d Marine Aircraft Wing, that the Applicant be discharged with a general (under honorable conditions) by reason of unsatisfactory performance failure to conform to weight standards.  Commanding Officer’s comments:  “It is recommended that SNM be discharged for lack of self-discipline and failure to conform to USMC weight standards.  SNM has been assigned to weight control three (3) times.  SNM failure is not due to pathological reasons.  SNM is recommended for a General Under Honorable Discharge.”

921130:	Commanding General, 3d Marine Aircraft Wing, directed the Commanding Officer, Marine Aviation Logistics Squadron 11, to discharge the Applicant with a General Discharge by reason of failure to conform to weight standards.

930104:	Applicant was examined this date and found physically qualified for separation.

930106:	Counseling: Applicant informed by Commanding Officer that Applicant is recommended but not eligible for reenlistment due to assignment to weight control and that he will be assigned an RE-3P reenlistment code upon separation.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930126 by reason of weight control failure (A) 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 but inequitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that his character of service is inequitable because it was based on weight standards.  According to applicable regulations, a member may be involuntarily separated for failure to meet height/weight standards when the sole reason for separation is failure to meet height/weight standards, and the member’s performance and conduct otherwise conform to established standards.  In this Applicant’s case, aside from entries relating to his inability to maintain prescribed height/weight standards, his records contain no evidence of nonjudicial punishment proceedings, disciplinary actions, or any other significant negative aspects.  Thus, the Applicant met the criteria for separation due to weight control failure.  Unless unusual circumstances warrant other characterization and the other characterization is approved by GCM authority, members discharged under reference A will be assigned an Honorable character of service if the average conduct and proficiency markings are 4.0/3.0 or better.  The Applicant’s average conduct and proficiency marks were 4.5 and 4.6, respectively, on 14 marking occasions.  Based on this analysis, the Board unanimously concluded that the Applicant’s character of service should be Honorable.  Relief is granted.  

The Applicant informs the Board that he is currently attending night school to finish a business degree.  While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge.  No relief is granted on this basis.

The Applicant is advised that 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 or enhancing employment and educational opportunities.  Additionally, the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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

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 5420.174D 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