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USMC | DRB | 1999_Marine | MD99-00989
Original file (MD99-00989.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00989

Applicant’s Request
The application for discharge review, received 990715, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed the American Legion as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000424. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: MARCORSEPMAN 6215.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (EQUITY ISSUE) This former member opines that the overall quality of his service period, as evidenced by his satisfactory evaluation markings, is sufficient to warrant a fully honorable characterization of service.

2. (EQUITY ISSUE) This former member further request amendment of is narrative reason to secretarial authority vice assigned weight control failure.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant
Copy of medical pages (3 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920422 - 930125  COG

 Period of Service Under Review :
Date of Enlistment: 930126               Date of Discharge: 960903

 Length of Service (years, months, days):

         Active: 03 07 08
         Inactive: None
Age at Entry: 21                          Years Contracted: 4

 Education Level: 13                        AFQT: 89

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (7)                       Conduct: 4.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: MARCORSEPMAN 6215.

 Chronological Listing of Significant Service Events :

930417:  Podiatry Clinic: S: Left ankle. A: Stress pain to left ankle...P: Patient ed on DX and TX. Limited duty for 3 days.
930419:  Podiatry Clinic: S:Left ankle and foot pain. A: Stress pain to foot and ankle. P: Patient ed on DX and TX. Limited duty for 4 days. Tennis shoes for 4 days.
950216:  Weight Control/Distribution Program: Not due to a pathological disorder. The recommended .8 pounds per month and a total of 5 pounds within 6 months is a realistic goal.
950521:  Counseled for deficiencies in performance and conduct. Specifically, failure to attain minimum standards on the PFT taken (950221), failed to perform the minimum number of pull-ups. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950216:  Weight evaluation: Weight 208 pounds. Body Fat: 34.9%. Recommend .8# per mo for 6 month max 6#. A: over USMC weight standards. P: Cleared for PT. RTC prn if worsen....
950223:  Applicant assigned to weight control/distrubution program.

 950301:  Counseled for deficiencies in performance and conduct. Specifically, failure to attain minimum standards on the PFT taken (950221), failed to perform the minimum number of pull-ups. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950303:  Light duty till 10March95. Can go to gym & swim for PT.

950306:  Weight: 210. Body Fat: 29.1%. Gain of 2 pounds.

950307:  Individual sick slip: Remarks: Alterate pt auth - gym/swim ok. No run, no march, no prolonged standing, no weight bearing PT, no heavy lifting, no uneven terrain, desk work ok, carry weapon ok ____ bear of choice. Thirty day.

950310:  Weight: 211. Body Fat: 29.9%. Gain of 1 pound.

950328:  Weight: 214. Body Fat: 29.2%. Gain of 3 pounds.

950329:  Individual sick slip: Injury. Remarks: SNM is not to participate in Ballistic activity such as running, jumping, bouncing activities. Also no marching. Must wear post-op shoe! Encouraged to swim and lift weights for physical training. Effective through 20Apr95.

 950330:  NJP for violation of UCMJ, Article 117 (2 specs):
 Specification 1: Use provoking words on 0550, 23Mar95, to wit: by saying to Cpl "No nigger music".
Specification 2: Use provoking words on 0550, 23Mar95, to wit: by referring to Cpl as a "mudshark".
Violation of UCMJ, Article 134:
Specification: Display conduct unbecoming a U.S. Marine by showing prejudice towards another race on 0550, 23Mar95.
Awarded forfeiture of $478.00 per month for 2 months, restriction for 30 days, extra duties for 45 days, and reduction to PFC. Forfeiture suspended for 3 months. Not appealed.
950331:  Weight: 210. Body Fat: 30.0%. Loss of 4 pounds.

950406:  Counseled for deficiencies in performance and conduct. [Using provoking words and conduct unbecoming a Marine by showing prejudice towards another race.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
950414:  Weight: 209. Body Fat: 31.7%. Loss of 1 pound.

950419:  Individual sick slip: Injury. Remarks: SNM has to have non-walking (non-weight bearing) cast to heal fracture in foot. Must be on for (4) four weeks. Can not participate in physical training involving lower extremities.

950523:  Individual sick slip: Injury. Remarks: SNM to participate in activity at own pace and distance. He is having surgery on foot in June '95.

950706:  Applicant to limited duty for 4 weeks.

950711:  Individual sick slip: Injury. Remarks: SNM is to remain absolutely non-weight bearing on right foot. Bone is rebroke necessitating no weight on foot.

950725:  Weight: 220. Body Fat: 33.3%. Gain of 11 pounds.

950802:  Weight: 219. Body Fat: 33.3%.    Loss of 1 pound.

950808:  Counseled for deficiencies in performance and conduct. [Negotiating worthless checks.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
950809:  Weight: 218. Body Fat: 35.6%. Loss of 1 pound.

950818:  Weight: 220. Body Fat: 33.3%. Gain of 2 pounds.

950926:  Individual sick slip. Injury. Remarks: No running or _____ (ballistic) activity for (30) days, can swim, bike, and use stairmaster. Need to F/U at TAMC for running clearance.

951006:  Weight: 226. Body Fat: 35.9%. Gain of 6 pounds.

951011:  Weight Control/Distribution Program Reevaluation. Not due to a pathological disorder. The loss of 3.8 pounds per month and a total of 23 pounds within 6 months is a realistic goal. Applicant not to participate in ballastic activity (running) until released by him.

951013:  Weight: 222. Body Fat: 32.5%. Loss of 4 pounds.

951020:  Weight: 223. Body Fat: 34.5%. Gain of 1 pound.

951026:  Individual sick slip: Injury. Remarks: SNM is to be on limited duty _____ running at own pace and distance.

951027:  Weight: 224. Body Fat: 37.5%. Gain of 1 pound.

951103:  Weight: 221. Body Fat: 37.3%. Loss of 3 pounds.

951103:  Counseled for deficiencies in performance and conduct. Specifically, failure to meet Marine Corps weight standards within the initial 6 month period allotted by MCO 6100.10b. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951117:  Weight: 217. Body Fat: 32.0%. Loss of 4 pounds.

951122:  Weight: 217. Body Fat: 32.0%.

951130:  Weight: 223. Body Fat: 33.8%. Gain of 6 pounds.

951201:  Counseled for deficiencies in performance and conduct. Specifically, failing to make progress on a weekly basis. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

951206:  Limited duty for 6 months. Limitations: PT at own pace, no formation runs. To run at own pace and distance.

951208:  Weight: 221. Body Fat: 32.5%. Loss of 2 pounds.

951215:  Weight: 222. Body Fat: 32.0%. Gain of 1 pound.

951222:  Weight: 222. Body Fat: 32.0%.

951229:  Weight: 223. Body Fat: 33.3%. Gain of 1 pound.

960103:  Weight: 221. Body Fat: 32.3%. Loss of 2 pounds.

960112:  Weight: 222. Body Fat: 37.3%.

960119:  Weight: 222. Body Fat: 37.3%.

960126:  Weight: 222. Body Fat: 32.2%.

960201:  Weight: 220. Body Fat: 32.2%. Loss of 2 pounds.

960209:  Weight: 218. Body Fat: 32.2%. Gain of 2 pounds.

960216:  Weight: 218. Body Fat: 32.2%.

960223:  Weight: 218. Body Fat: 32.2%.

960229:  No duty, confined to bed in barracks except for messing. Terminates 0730, 1Mar96.

960301:  Weight: 223. Body Fat: 32.2%. Gain of 5 pounds.

960301:  Applicant informed eligible but not recommended for promotion for the March 1996 to Lance Corporal because of a page 11 entry dated 951103.

960308:  Weight: 215. Body Fat: 29.7%. Loss of 8 pounds.

960315:  Weight: 215. Body Fat: 29.7%.

960517:  Weight: 225. Body Fat: 30.6%. Gain of 10 pounds.

960521:  Weight Control/Distribution Program reevaluation: not due to pathological disorder. Applicant on limit duty board for Jones fx with screw fixiation to PT at own pace.

960522:  Military sick call: A: Overweight. P: lose 4 lbs/month IAW LIMDU status. F/U with ortho for disposition. RTC prn.

960524:  Weight: 222. Body Fat: 34.1%. Loss of 3 pounds.

960702:  Orthopedic clinic: Left knee pain. A/P: Poss chronic MMT right knee, check xr's, checked MRI. F/U after MRI complete.

960716:  Podiatry: Imp: Well healed Jones Fx...Rec: Additional time to allow to heal. If this isn't possible then MED would be advised, but only after 12 months of time to completely heal. LIMDU.

960716:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of weight control failure.

960717:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960718:  Commanding officer recommended discharge general (under honorable conditions) due to weight control failure. The factual basis for the recommendation was weight control failure
960815:  SJA review determined the case sufficient in law and fact.

960820:  GCMCA [Commander, Marine Corps Base Hawaii] directed the applicant's discharge general (under honorable conditions) by reason of weight control failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960903 general (under honorable conditions) due to weight control failure (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Responding to the applicant’s first issue, the Board felt that the applicant’s service did not meet the criteria required for an Honorable discharge. Specifically, the applicant had two instances of misconduct, counseling for negotiating worthless checks (in Aug 95) and CO’s NJP for using provoking words and conduct unbecoming a US Marine (in Mar 95). The Board felt these instances of misconduct outweighed the applicant’s satisfactory marks. Therefore, the Board concluded that the applicant’s General discharge was proper and equitable.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The applicant was counseled numerous times for weight control. Regardless of any medical injury, the applicant was still required to keep within body fat standards. The applicant's DD Form 214, Block 26, Separation Code, indicates he was separated for weight control failure. No other Separation Code, or Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Separation Code, or the Narrative Reason Separation would be inappropriate.

The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.






Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6215, WEIGHT CONTROL FAILURE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95 until Present.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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