Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Sanabria, Armando M CIV SECNAVCORB, CORB
Company: NCPB

Docket No. MD15-00820

ex-LCpl, USMC

Current Discharge and Applicant’s Request

Application Received:  20150313
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) WEIGHT CONTROL FAILURE
Reenlistment Code:  RE-3P
Authority for Discharge:  (per DD 214) 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)	20100201 - 20100607  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20100608	Age at Enlistment:  18
Period of Enlistment:  5 Years  0 Months
Date of Discharge:  20140910	Highest Rank:  LANCE CORPORAL
Length of Service:  04  Year(s)  03  Month(s)  03  Day(s)
Education Level:  12	AFQT:  97
MOS:  6074
Proficiency/Conduct Marks (# of occasions):  4.3 (9) / 4.0 (9)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	NDSM GWOTSM SSDR(2) GCM LoA (7)         

Periods of UA/CONF:  NONE

NJP:  NONE

SCM:  NONE

SPCM:  NONE

CIVIL ARREST:  NONE

CC:  NONE

Retention Warning Counseling:  13

- 20111229:	For assignment to BCP

- 20120417:	For unsatisfactory performance while on BCP

- 20120706:	For extension to BCP

- 20120906:	For unsatisfactory performance while on BCP

- 20121003:	For unsatisfactory performance while on BCP

- 20121218:	For unsatisfactory performance while on BCP

- 20131217:	For second assignment to BCP

- 20140124:	For unsatisfactory performance while on BCP

- 20140220:	For unsatisfactory performance while on BCP

- 20140403:	For unsatisfactory performance while on BCP

- 20140417:	For unsatisfactory performance while on BCP

- 20140529:	For unsatisfactory performance while on BCP

- 20140617:	For failure of BCP

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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☐	From/To Representation:	☐	From/To Congress member:	☐

Types of Witnesses Who Testified

	Expert:	☐	Character:	☐

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.

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

Applicant’s Issues

1.	The Applicant contends her discharge is improper because she was told her only option for weight control failure was getting out.
2.	The Applicant contends her discharge is inequitable because the sole basis for her discharge was weight control failure, with no misconduct to warrant a General discharge, and proficiency and conduct marks of 4.3, and 4.0, respectively.

Decision

Date:  20150430	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

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 Board did complete a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included thirteen 6105 counseling warnings for assignment to the Body Composition Program (BCP), for unsatisfactory performance while in BCP, and for failure of BCP.  Based on the Applicant’s weight control failure, her command administratively processed her for separation.  When notified of administrative separation processing using the notification procedure, the Applicant exercised her rights to consult with a qualified counsel, and submit a written statement.  The Applicant was not entitled to request an administrative board.  

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends her discharge is improper because she was told her only option for weight control failure was getting out.  Under the authority for administrative separation for weight control failure, processing for separation is mandatory if the Marine fails to make her weight or body fat percentage standard, even if the Marine makes progress towards her goal.  A Commander is permitted to extend a Marine on BCP who makes progress, but has not met her standard, for an additional six months.  However, failure to meet Marine Corps standard for weight after a second assignment on BCP requires mandatory processing for administrative separation.  The NDRB determined the Applicant’s discharge is proper.  Relief denied. 

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends her discharge is inequitable because the sole basis for her discharge was weight control failure, with no misconduct to warrant a General discharge, and proficiency and conduct marks of 4.3, and 4.0, respectively.  The Applicant’s record shows she was assigned to BCP 29 December 2011 after she weighed in at 152 pounds with 35 percent body fat.  Her maximum standard weight was 150 pounds and her maximum body fat was 26 percent.  On 17 June 2014, after almost 30 months on BCP, the Applicant weighed 176 pounds with 33 percent body fat.  Although the Applicant’s conduct met the standards for Honorable service, it was her unsatisfactory performance while on BCP, for which she received nine official counselings in her record, that warranted the characterization of General (Under Honorable Conditions) discharge.  After a careful review of the Applicant’s record, evidence submitted by the Applicant, and appropriate regulations for Weight Control Failure, the NDRB determined the Applicant’s discharge is proper and equitable as issued.  Relief denied.

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 and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain WEIGHT CONTROL FAILURE.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her discharge.  The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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 	RESTR - Restriction	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	CBW - 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