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

Docket No. MD09-01324

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20090413
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  UNSATISFACTORY PERFORMANCE
Authority for Discharge:  MARCORSEPMAN 6206 (UNSATISFACTORY PERFORMANCE)

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19951028 - 19951128  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19951129	Age at Enlistment:  19
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  19980522	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  05  Month(s)  24  Day(s)
Education Level:  12	AFQT:  79
MOS:  4067
Proficiency/Conduct Marks (# of occasions):  4.5 (8) / 4.4 (8)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	NDSM

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

Retention Warning Counseling:  3
- 19970926:	For financial irresponsibility and failure to maintain insurance on your POV which caused you to be arrested by Dougherty County Sheriff’s Department.
- 19971003:	For being overweight.
- 19971212:	For unauthorized absence from Battalion weight - in.

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:  ☐

Pertinent Regulation/Law

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 to 31 August 2001.

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.

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

Applicant’s Issues

1.	Weight increase was due to back injury.
2.    Record of service (I was nominated for the Marine of the Quarter).

Decision

Date:  20100107	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 3-2 the Characterization shall change to HONORABLE.
By a vote of 5-0 the Narrative Reason shall remain UNSATISFACTORY PERFORMANCE.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included three 6105 counseling warnings and various letters from the command for failure to maintain the Marine Corps Remedial Conditioning Program.  He had no misconduct, which resulted in NJP or court-martial. The Applicant also had a pre-service weight waiver (202 pounds/69 inches) for being over the Marine Corps height and weight standards, which requires a weight of 186 pounds for his height.  The Applicant was placed on the Body Composition Program (BCP) as per MCO P6100.12 on 1 October 1997, at which time his weight was 196 pounds.  He was given a goal weight of 186 pounds by losing 1.6 pounds per month.  During his time on the BCP program, the Applicant gained weight, to 205 pounds and 28% body fat.  Based on the failure to maintain and make a reasonable effort to lose weight while assigned to BCP program by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant elected to consult with a qualified counsel and submit a written statement.

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable due to his back injury which caused him to gain weight.  In reviewing the Applicant’s service records, the board noted a documented back injury, but also noted that he was cleared by his medical officer and orthopedics to participate on the BCP to lose the required weight, and was given 6 months to lose 9.6 pounds.  

Issue 2:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends he was always on good behavior and was also nominated for the Marine of the Quarter.  As evidenced in the member’s record and commanding officer’s comments contained in the previously referenced transmittal letter, the member has committed no misconduct during this enlistment. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service.  The Board voted 3-2 to upgrade the character of the discharge to Honorable, based on the satisfactory proficiency and conduct marks attained by the Applicant and his lack of documented misconduct.  Therefore, relief is warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper but not equitable.   Therefore, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall remain UNSATISFACTORY PERFORMANCE.

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