Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD09-01895

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090625
Characterization of Service Received:  (per DD 214)  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214)  UNSATISFACTORY PERFORMANCE
Authority for Discharge:  (per DD 214) MARCORSEPMAN 6206 [UNSATISFACTORY PERFORMANCE]

Applicant’s Request:	Characterization change to:  HONORABLE
	Narrative Reason change to:  REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19970814 - 19971104  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19971105	Age at Enlistment:  19
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20000602	Highest Rank:  LANCE CORPORAL
Length of Service:  02  Year(s)  06  Month(s)  28  Day(s)
Education Level:  12	AFQT:  81
MOS:  6432
Proficiency/Conduct Marks (# of occasions):  4.3 (2) / 4.3 (2)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  NONE

NJP:  1

- 20000111:	Article 92 (Failed to obey a lawful order - clean paint marks on the van pad)
	Awarded: RIR RESTR EPD  Suspended:  RESTR EPD FOR 15 DAYS

SCM:  NONE     SPCM:  NONE     CC:  NONE

Retention Warning Counseling:  8

- 19990113:	For failure to pass the Marine Corps Physical Fitness Test by attaining a score of 125, specifically for failing the minimum requirement for pull-ups, completing only 2 pull-ups.

- 19990113:	For my assignment to Weight Control Program.  My current height is 73 inches.  My current weight is 221 pounds, and my maximum weight limit is 209 pounds.  I understand that I have a body fat percentage of 23%, with a neck measurement of 16.5 inches, and an abdomen measurement of 40 inches.  I understand that I have been provided a control date of 19970713.  I understand that I do not meet the weight requirements for MCO 6100.10B.

- 19990708:	For failure to make satisfactory progress while assigned to weight control and remedial Physical Training Platoon (PTP).  On 19990113 you weighed 221 pounds and were assigned to the weight control program for being over your maximum weight of 209 pounds.  You also failed the Marine Corps Physical Fitness Test on 19990113 by performing only 2 pull-ups.  On 19990611, you weighed 230 pounds and could only do 1 pull-up.  Your lack of effort at PTP sessions has been noted.  You are advised that continued failure to make progress and achieve your weight/body fat goals by 19990713 could result in administrative separation from the Marine Corps.

- 19990819:	For your misconduct, specifically; your violation of Article 86, not being at your appointed place of duty at the appointed time.  You were at the rifle range on the week of 21-25 June and you fired your limited exposure on 24 June.  Therefore, your appointed place of duty on 25 June was PTP at 0545.

- 19990930:	For your substandard performance, specifically your failure to meet Marine Corps Weight Standards (second count) in accordance with Marine Corps Order 6100.10B.  Your are to take corrective action by meeting your maximum weight goal of 214 pounds or 18 percent body fat by 19991229.  Failure to demonstrate significant and satisfactory progress during this 90-day period may result in your administrative reduction, separation, or nonjudicial punishment proceedings.

- 19991118:	For substandard performance, specifically while being assigned to weight control (second count) you were directed to lose 3.4 pounds or 2% body fat per month.  You were assigned on 19990930 with a weight of 239 pounds and a body fat of 21%.  On 19991117 you weighed 238 pounds with a body fat of 25%.  You must begin to show satisfactory progress and achieve the weight goal of 214 pounds or body fat of 18% by 19991230.

- 19991230:	For your substandard performance, specifically while being assigned to weight control (second count), you were directed to lose 3.4 pounds or 2% body fat per month.  You were assigned on 19990930 with a weight of 242 pounds and body fat of 26%.  On 19991216 you weighed 239 pounds with a body fat of 24%.  You must begin to show satisfactory progress and achieve the weight goal of 214 pounds or 18% body fat by 20000130 or be subject to NJP.

- 20000112:	For your misconduct, specifically your violation of Article 92, as evidenced by your recent NJP, in that you failed to obey a lawful order issued by a superior noncommissioned officer.  Specifically, you were told to clean paint overspray off the van pad, and you failed to do so.

- 20000211:	For your substandard performance, specifically as of 20000207 you fail to meet the Marine Corps Standard for the pull-up portion of the PFT by doing zero pull-ups.  On 19990304 you were assigned to PTP and have shown no progress to date.  You display no motivation or any self-discipline to correct your deficiencies.  You failed to execute the pull-up event of the Marine Corps PFT during PTP until it was determined that you did not perform pull-ups at the designated time.  Your weight goal is 214 pounds and was to be obtained by 19991230.  As of 20000207 you are 242 pounds and 29% body fat.  You fail to meet the weight standards set forth by MCO 6100.3J.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “LETTER OF APPRECIATION”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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.  Separation based on medical reasons.

Decision

Date:  20100625	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 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 eight 6105 counseling warnings and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, clean paint marks on the van pad).  Based on the Training Officer’s letter of 14 March 2000, the Applicant failed to meet assigned weight and body fat goals after being granted two extensions and failed to display the motivation or desire to make any effort to comply with his commanding officer’s directive.  Based on the Applicant’s unsatisfactory performance while assigned to the weight control program, his command administratively processed him for separation. 
When notified of administrative separation processing, the Applicant waived his right to submit a written statement but elected to consult with a qualified counsel.

Issue 1:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant requested an upgrade, because his separation was based on medical reasons, and he wants the narrative reason to reflect this.  The Applicant stated he had low levels of testosterone, knee surgery, and depression, and has been granted a 30 percent disability rating by the U.S. Department of Veterans Affairs for service-connected injuries.  The NDRB found evidence the Applicant was treated for bulimia, but no documentation (e.g., Physical Evaluation Board determination) to support the Applicant’s contention that he was discharged for medical reasons.  The NDRB found the Applicant did have knee surgery, but was given two months after being on limited duty to comply with the Marine Corps weight and body fat standards for his height.  The NDRB determined the Applicant was not separated for medical reasons but for failure to meet assigned weight and body fat standards.

The Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 to 31 August 2001, however, does allow for an Honorable discharge for servicemembers separated for unsatisfactory performance (paragraph 6206).  After a review of the Applicant’s service record, the NDRB did find that his service met the standard for honorable conduct. An upgrade to Honorable is warranted.

For the Applicant’s information, 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 nor does the NDRB have the authority to change a former servicemember’s final rank.  Only the Board for Correction of Naval Records (http://www.donhq.navy.mil/bcnr/bcnr.htm) can grant these types of changes.

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.

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. 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 – Nonjudicial 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