DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

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2 NAVY ANNE

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WASHINGTON DC 20370.510

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TRG
Docket No: 6860-00
25 July 2001

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title  
States Code section 1552.

18 of the United

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 17 July 2001.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.

Your allegations of error and

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

The Board found that you reenlisted in the Marine Corps on 21
September 1976 for three years.
show that you were on the weight control program during the
period 1 August 1976 through 31 July 1977.
for the period ending 31 July states as follows:

The next two fitness reports

The fitness report

(He) was placed on weight/personal appearance

at-a starting weight of 210 pounds with a goal of  
to be achieved by 771027.
His present weight is 211
pounds with no noticeable improvement in distribution.

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On 28 November 1977 you were notified of separation processing by
reason of unsuitability due to obesity.
discharge board met on 9 December 1997 and recommended discharge.
The fitness report for the period ending 31 January 1978 states
that you had a problem controlling your weight and your
inability to conform to established standards was due to a lack
of initiative and willpower.

An administrative

On 13 April 1978 the staff judge advocate recommended approval of
the recommendation for discharge, but further recommended that

Seven days
execution of the discharge be suspended for a year.
later, however, the commanding general directed discharge at the
earliest practicable date.
years, 7 months and 21 days of active service.
not discharged but were placed on medical hold pending foot
surgery, and you apparently remained in that status for over 18
months.
program, you were found physically fit for duty by the Physical
Evaluation Board (PEB).

On 1 November 1979, while you were in an overeaters

At that time, you had completed 16

However, you were

The fitness report for the period 1 August 1979 to
1980 states as follows:

  31 January

. 

His weight

- 5 December 1979.

. from 25 October 1979  

During this period (he) attended the overeaters program
. 
wen he initially entered the program was 260 pounds and
He appears to have a good
he graduated at 242 pounds.
out look on life and he presently weights 216 pounds.
His progress is considered excellent and his enlistment
is currently extended to 1 July 1980 to enable him to
achieve his goal weight of 18.6 . . . .

You were apparently extended for an additional period of six
months to complete the aftercare portion of the overeaters
program.

The next fitness report for the period ending 4 August 1980
states, in part, as follows:

. 

. Although his discharge was approved over two years
. 
ago he has remained on active duty for medical reasons.
He made steady progress in his attempt to lose weight
until the 5th month (May) of his extension when he
gained 10 pounds.
the month of June and the decision was made to carry
out the discharge.
examination for discharge it was discovered that he had
a hernia and an operation was necessary.
operation was performed and   he is  now on convalescent
leave for 30 days . . .

He continued to gain weight through

While undergoing the physical

This

On 31 August 1980 the discharge directed on 20 April 1978 was
executed.
5 days of active service.

At that time you had completed 18 years, 8 months and

In your application you are requesting that the record be
corrected to show that you retired from the Marine Corps based on
length of service or, in the alternative, that you were retired
because of a physical disability.
pursue the disability issue because you thought you had been

You contend that you did not

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extended to complete 20 years of service and there was no final
You also contend that you should have
action taken by the PEB.
been retained because you successfully completed the overeaters
program an upon completion of 18 years of active service,
Finally you contend that you were
reached the sanctuary zone.
lVhoodwinkedll into believing you would be permitted to completed
20 years of service.

the Board noted that as of 20 April

you had completed less

In reaching its decision,
1978, when your discharge was approved,
than 17 years of active duty and were only retained after that
The
date, for the most part, because of physical problems.
record shows that you were given every opportunity to comply with
the weight standards, but beginning in May 1980 you gained
Additionally, even under current regulations, the
weight.
sanctuary protection granted to those who have accumulated over
18 years of service does not apply to an individual discharged
Since the discharge was
for cause after attaining sanctuary.
approved long before you reached 18 years of service, and you
were discharged for cause,
that you would be entitled to sanctuary protection was without
merit.
U.S.C. 
discharge.
by reason of obesity based on the commanding general's directive
of 20 April 1978.

Additionally, the statute which  
§1176a, was not enacted until 1992, well after your

The Board concluded that you were properly discharged

the Board found that your contention

grants such protection 10

Concerning the physical disability issue, the record shows that
appealed that finding and made a
you were found fit for duty,
personal appearance before the PEB,
duty on 1 November 1979.
evidence to show that the PEB finding was incorrect, the Board
concluded that you were properly found fit for duty.

Since you have not submitted any

but were again found fit for

Finally, the Board could find no evidence in the record that you
were "hoodwinked" into believing that you would be permitted to
serve for 20 years.
there is no indication
that anyone with actual or apparent authority ever gave you such
assurance.

Along these lines,

Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.

The names and

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval

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record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

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