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USMC | DRB | 2000_Marine | MD00-00668
Original file (MD00-00668.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD00-00668

Applicant’s Request
The application for discharge review, received 000426, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the reason for discharge. The Board’s vote was unanimous that the character of the discharge shall not change, but the reason for separation should. The discharge shall change to: (GENERAL) UNDER HONORABLE CONDITIONS/WEIGHT CONTROL FAILURE, authority: MARCORSEPMAN Par. 6215.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. My discharge was inequitable because it was based on a known medical condition after 42 mos of a 48 month enlistment.
2. I was promised that the reason for discharge would be weight control, not unsatisfactory performance.
3. I, (applicant), was just recently (August 12th, 1999) discharged from the US Marine Corps after 3 1/2 years of enlistment. I had a problem with weight control, and was discharged because of it.
To begin with, I had a weight problem when I went into the Marine Corps, and had to go on a delayed enlistment program to give me time to loose some weight. I came down to about 10 pounds over their limit, but they (the Roseville CA recruiter) decided that this was close enough, so I started boot camp in January 1996. I made it through all of boot camp, up to the last week, then on a forced march (ten miles) suffered a fracture of the right leg. It was a stress fracture, probably due to being still about 4 pounds over weight, and I was delayed in graduating from boot camp for a month. I endured this with no problem.
Additionally, when I was recruited, I was given a contract in the Communications field as promised by my recruiter, Upon graduation from boot camp I learned that my contract was not honored, and that I had been sent to the Infantry.
Throughout my entire enlistment, I continuously had problems maintaining my weight. I sincerely did wish to lose the weight, but I had problems doing so. I was given forced exercise drills (with a sand filled pack) but no formal weight counseling or other medical assistance. I endured this situation for over a year, then was forced to accept a General Discharge, under Honorable Conditions. They did not use "weight control" as the reason, though I was personally told by the Unit Commander and the Legal Officer that weight control was to be the reason. Instead they listed unsatisfactory performance of duties as the reason for discharge.
Now I have been told by the Employment Developement Dept. (EDD) in California (San Diego office) that I cannot receive unemployment payments since I did not complete the enlistment.
 This is ridiculous, they certainly collected my contribution for unemployment insurance from my pay check every pay period. I am really discouraged. I feel that the Government has given me a raw deal, and have lost my enthusiasm about my military service. The situations surrounding my discharge have made a terrible difference in my transition back to the civilian world.

I am now working through a temporary employment agency, and going to school majoring in Computer Technology. I am paying for this myself since I have also been told that though he contributed $100 per month for a full year, I cannot receive his GI education benefit due to the General Discharge (Honorable Conditions). I am hereby requesting a review of my records, with the objective being a change in the discharge to Honorable. Hopefully there will be no further problem in this. I request that you look into this situation and assist in getting the discharge upgraded, so that I may receive my VA Education Assistance benefit.

Thank you for your assistance
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                950818 - 960122  COG
Period of Service Under Review :
Date of Enlistment: 960123               Date of Discharge: 990812

 Length of Service (years, months, days):
         Active: 03 06 20
          Inactive: None
Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 85
Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.0 (8)                       Conduct: 3.9 (8)

 Military Decorations: None
Unit/Campaign/Service Awards: AFEM, SSDR, NUC

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

 Chronological Listing of Significant Service Events :

960123:  Report of Medical Examination dated 950818: Physical inspection date 960123: Weight: 214 pounds.
970301:  * Not recommended for promotion.

970414:  * Not recommended for promotion.
970508:  * Not recommended for promotion.
970530:  * PFT failure.

970606:  * NJP:   Awarded forfeiture of $235.00 per month for 1 month, restriction and extra duty for 7 days. Forfeiture, restriction and extra duty suspended for 6 months.

970701:  * Will not promote.

970801:  * Will not promote.
970901:  * Will not promote.

 971001:  * Will not promote.
971012:  * Not recommended for promotion.
971020:  * NJP: Awarded forfeiture of $450.00 per month for 2 months, restriction for 60 days, reduce to Pvt.

980611:  Weight Control Officer referred applicant to Credentialed Health Care Provider since he does not meet acceptable Marine Corps Standards with a height of 71 inches, weight of 202 lbs, with maximum weight of 197 lbs and advised applicant that the loss of 5 lbs per month and total of 30 pounds within a 6 month period is a realistic goal.

980611   Appropriately Credentialed Health Care Provider: Applicant's physical condition is not due to a pathological disorder, fit for participation in physical exercise program, and recommended loss of 2.5 pounds per month and a total of 6 pounds within six months is a realistic goal.

980615:  Applicant placed on weight control program.

 980615:  Bi-monthly body fat analysis chart: Body fat: 29%.
980629:  Bi-monthly body fat analysis chart: Body fat: 29%.
980639:  Bi-monthly Weigh-in chart: 212 pounds

 980713:  Bi-monthly body fat analysis chart: Body fat: 28%.

980713:  Bi-monthly Weigh-in chart: 211 pounds

980713:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. Remarks: Applicant start weight was 210. After five weeks on the program applicant has gained 1 pound.

980727:  Bi-monthly body fat analysis chart: Body fat: 28%.
980727:  Bi-monthly Weigh-in chart: 211 pounds

 980810:  Bi-monthly body fat analysis chart: Body fat: 29%.
980810:  Bi-monthly Weigh-in chart: 212 pounds.
980810:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. Remarks: Applicant has gained 2 pounds after eight weeks on the program.

 980824:  Bi-monthly body fat analysis chart: Body fat: 29%.

980824:  Bi-monthly Weigh-in chart: 213 pounds.

980824:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. Remarks: Applicant continues to gain weight, applicant gained 1 pound since last weigh-in.

980908:  Bi-monthly Weigh-in chart: 214 pounds.

980909:  Bi-monthly body fat analysis chart: Body fat: 28%.

980909:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. Remarks: Applicant continues to gain weight, applicant gained 1 pound since last weigh-in.

980923:  Bi-monthly body fat analysis chart: Body fat: 28%.

980923:  Bi-monthly Weigh-in chart: 219 pounds.

980923:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program,. Remarks: Applicant continues to gain weight, applicant has been advised that failure to make satisfactory progress may result in separation from service.

981006:  Bi-monthly Weigh-in chart: 221 pounds.

 981007:  Bi-monthly body fat analysis chart: Body fat: 28%.
981007:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. Remarks: Applicant continues to gain weight, applicant gained 2lbs. since last weigh-in.
981015:  * Not recommended for promotion.

 981019:  Bi-monthly body fat analysis chart: Body fat: 32%.
981019:  Bi-monthly Weigh-in chart: 226 pounds.
981019:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. Remarks: Applicant continues to gain weight, applicant gained 5lbs. since last weigh-in.

981102:  Bi-monthly body fat analysis chart: Body fat: 32%.

 981102:  Bi-monthly Weigh-in chart: 229 pounds.
981116:  Bi-monthly body fat analysis chart: Body fat: 32%.
981116:  Bi-monthly Weigh-in chart: 229 pounds.

 981116:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. . Remarks: Applicant continues to gain weight, applicant gained 3lbs. since last weigh-in.

981201:  Bi-monthly body fat analysis chart: Body fat: 33%.

981201:  Bi-monthly Weigh-in chart: 234 pounds.

981201:  Counseled concerning deficiency, specifically, unsatisfactory progress while assigned to Weight control program. . Remarks: Applicant continues to gain weight, applicant gained 5lbs. since last weigh-in.

981210:  * Not recommended for promotion.
981211:  * PFT failure.

 990107:  * Not recommended for promotion.
990210:  * Not recommended for promotion.
990312:  * Not recommended for promotion.
990406:  Report of Medical History: Weight: 240 pounds.

 990409:  * Not recommended for promotion.
990510:  * Not recommended for promotion.
990708:  Weight Control Officer determined that the physical appearance of applicant does not meet acceptable Marine Corps standards. Current stats: Height: 71.5', Weight: 246 pounds, Body Fat: 39%, PFT score: 50 (failed).
990719   Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of unsatisfactory performance of duties. The basis for discharge is unsatisfactory performance of duties. Specifically you inability to adhere to Marine Corps height and weight standards, your documented failure to pass a required physical fitness test, and your repeated violations of the UCMJ.
990719   Applicant advised of his rights and having elected 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.
990721   Commanding officer recommended discharge with a general (under honorable conditions) by reason of unsatisfactory performance of duties.

 990809:  GCMCA [Commander, 1 st Marine Division (Rein)] advised the Commandant of the Marine Corps that the applicant's discharge was directed with a general (under honorable conditions) by reason unsatisfactory performance while assigned to weight control.

* - Extracted from Unit Diaries.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990812 with a general (under honorable conditions) due to unsatisfactory performance (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 not proper (C and D) and grants partial relief.
In the applicant’s issue 1, the Board found the medical condition that he states he had most of his career was his weight, which became a problem after 29 months in the service. He was assigned to the weight control program 980615, weighing 212 pounds, and remained there until his release from active duty on 990812, when he weighed 246 pounds. Clearly the applicant was not within weight standards. Relief denied.
In issue 2 the Board grants partial relief. He should have been discharged for weight control failure and not unsatisfactory performance.

 Issue 3 has numerous issues. In the first, the Board found nothing in his record that substantiates the applicant’s comment that he had a stress fracture. This is non-decisional.

In the second part of issue 3, the Board did find that the applicant enlisted for the communications field. The record does not indicate why the applicant was not given this MOS. However, this is a non-decisional issue.

In the 3 rd part of issue 3 has been covered in issue 2.
The final part of issue 3 discusses his use of the GI education. The Veterans Administration determines eligibility for post-service benefits not the Navy 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.

The Board did find that the applicant’s average proficiency and conduct marks were 4.0/3.9 respectively. He also had 2 NJP’s. To qualify for an honorable discharge the applicant’s conduct mark must be 4.0 or higher. The applicant’s was not. He was correctly discharged. Relief denied.

The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant should provide l documentation to support any claims of post-service accomplishments at that time. Representation at personal appearance hearing is highly recommended but not required.


Pertinent Regulation/Law (at time of discharge)
A. Paragraph 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to Present, states that a Marine may be separated if the Marine is unqualified for further service by reason of unsatisfactory performance.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

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
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023      


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