Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD09-00854

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20090227
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  WEIGHT CONTROL FAILURE
Authority for Discharge:  MARCORSEPMAN 6215 (WEIGHT CONTROL FAILURE)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20030929 - 20031116  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20031117	Age at Enlistment:  20
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20060921	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  02  Year(s)  10  Month(s)  05  Day(s)
Education Level:  12	AFQT:  43
MOS:  1345
Proficiency/Conduct Marks (# of occasions):  4.1 (5) / 3.9 (5)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle MM SSDR GWOTSM NDSM 

Periods of UA/CONF:  NONE          SCM:  NONE         SPCM:  NONE          CC:  NONE

NJP:  1
- 20050128:	Article 92 (Failure to obey a lawful order or regulation - 2 specifications)
	Awarded: FOP RESTR EPD  Suspended:  NONE

Retention Warning Counseling:  4

-Undated:	For failure to maintain weight and body fat standards.  

- 20050726:	For extension of Body Composition Program.

- 20051013:	For failure to be at appointed place of duty at prescribed time.

- 20060428:	For failure to attain body composition standards while assigned to the Body Composition Program.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  ☒	                            Service/Medical Record:  ☒           Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☒
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
              Additional Statements: 
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐
                    Other Documentation:  ☐

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

Applicant’s Issues
1.  Employment/educational opportunities.
2.  Record of service (no specific Issues).

Decision

Date:  20090604	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain WEIGHT CONTROL FAILURE.

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, Employment/Educational Opportunities, regarding this Issue.

Issue 2:  (Propriety/Equity)  RELIEF NOT WARRANTED.   The Applicant did not identify any other Issues upon which the Board can consider to recharacterize his discharge.  However, the Board did complete a thorough review of the circumstances which led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by four retention warnings and one NJP for violation of the Uniform Code of Military Justice: Article 92 (Failure to obey an order or regulation).  This is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge. 

According to his MEPS medical evaluation, the Applicant was overweight upon enlistment.  Although not specifically documented, the Board assumes the Applicant had a weight waiver to enlist.  In January 2005, the Applicant was placed on the Body Composition Program (BCP) and was ordered to lose ten pounds or six percent of his body fat.  After six months, the Applicant made no progress and was given a six month extension.  By January 2006, the Applicant gained 19 pounds to an overall weight of 232 pounds, which was 29 pounds over his maximum weight standard of 203 pounds.  Throughout this period, the Applicant’s weight control issue was medically certified as not being the result of an underlying cause or disease.  In the Board’s opinion, the Applicant made no effort to rectify the situation and in the Commanding Officer’s statement, “Private First Class [Applicant] is virtually attempting to eat his way out of the Marine Corps.”  Minimum acceptable average proficiency and conduct markings during an enlistment are 3.0 and 4.0 respectively.  Failure of a Marine to achieve either of these proficiency/conduct standards is evidence of significant negative aspects, outweighing all but the most meritorious military records.  Marines who do not achieve these standards do not warrant an Honorable discharge.  Based on the documented misconduct and the proficiency/conduct marks of 4.1/3.9 over the Applicant’s enlistment, the Board determined a General (Under Honorable conditions) characterization was appropriate.  

For the Applicant’s edification, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attending or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant’s statement on the DD Form 293, he provided documentation of his acceptance to start an apprenticeship program with the International Union of Operating Engineers, Local 181 as evidence on his behalf.   The Board applauds the Applicant for his pursuit in learning a new skill to better his life.  However, to warrant an upgrade the Applicant’s post-service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  Should the Applicant obtain additional evidence or post-service documentation he may wish to apply for a personal appearance.  There are veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  The Board determined the characterization of service received, General (Under Honorable Conditions), was an appropriate characterization considering the length of service, the UCMJ violation involved, and limited post-service documentation provided.
 
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

Pertinent Regulation/Law

A.  Paragraph 6215, WEIGHT CONTROL FAILURE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  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 a lawful order or regulation). 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water