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USMC | DRB | 2001_Marine | MD01-00139
Original file (MD01-00139.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD01-00139

Applicant’s Request
The application for discharge review, received 001113, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but that the discharge characterization was inequitable. The Board’s vote was unanimous that the character and reason for discharge shall change to: HONORABLE/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (Equity Issue) The former member opines that despite his ongoing weight problems and physical limitations, his overall service record supports a fully honorable discharge. On this basis, he petitions the Board’s relief.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from applicant dated November 3, 2000
Statement from applicant, undated
Seventeen pages from applicant' service/medical record
Copy of disability compensation from Department of Veterans Affairs dated May 29, 1998
Pages of Navy Nutrition and Weight Control Self-Study Guide (page 1, 21, and 45)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                920916 - 921227  COG

 Period of Service Under Review :
Date of Enlistment: 921228               Date of Discharge: 980105

 Length of Service (years, months, days):

         Active: 05 00 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 6

 Education Level: 12                        AFQT: 84

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (12)             Conduct: 3.9 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM (3), GCM, SSDR

 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 :

941115:  Applicant informed eligible but not recommended for promotion to Corporal for the month of November 1994 because of failure to adhere to military physical standards.

941220:  Applicant informed eligible but not recommended for promotion to Corporal for the month of December 1994 because of failure to adhere to military physical standards.

950111:  Counseled for deficiencies in performance and conduct. [Failed to pass PFT and failed to attend remedial PFT as required.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
960308:  Applicant assigned to weight control program. [Extracted from personal data sheet.]

960801:  Applicant informed eligible but not recommended for promotion to Corporal for the month of August because of assignment to weight control.

961220:  Applicant informed eligible but not recommended for promotion to Corporal for the month Jan/Feb/Mar promotion quarter because of assignment to weight control.

970221:  Medical evaluation on applicant due to physical appearance. Applicant's present weight is 218 pounds and a 26.5 percent body fat. Applicant recommended loss of 9 pounds per month and a total of 27 pounds within 3 month period is a realistic goal.

970221:  Appropriately Credentialed Health Care Provider First Endorsement: Applicant's physical appearance is not due to a pathological disorder.

970221:  Applicant assigned to weight control program due to determination to be overweight and are directed to meet the following weight reduction goal: 45 pounds per month. Weight goal of 192 pounds to be attained no later than 6 months from this date. Applicant signed understanding letter.

970225:          Weight: 222, Body Fat: 29.9%
970303:          Weight: 220, Body Fat: 29.9%
970311:  Applicant informed eligible but not recommended for promotion to Corporal due to assignment to weight control IAW MCO P1400.3 paragraph 3F through 3N.

970321:          Weight: 218, Body Fat: 29.9 %
970324:  Weight: 224, Body Fat: 29.1%
970325:  Counseled for deficiencies in performance and conduct. [Unsatisfactory progress while assigned to the weight control/physical conditioning programs.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
970331:   Weight: 217, Body Fat: 29.9%
970408:  Weight: 219, Body Fat: 29.9%

970414:  Weight: 218, Body Fat: 29.0%

970421:  Weight: 217, Body Fat: 29.1%

970429:  Weight: 219, Body Fat: 28.7%

970505:  Weight: 219, Body Fat: 28.7%

970520:  Weight: 225, Body Fat: 30.6%

970521:  Weight: 224, Body Fat: 30.6%

970527:  Weight: 227, Body Fat: 30.6%

970602:  Weight: 224, Body Fat: 26.5%

970613:  Counseled for deficiencies in performance and conduct. [Misconduct for failing to meet the Marine Corps Weight Standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970613:   Weight: 221, Body Fat: 31.5%
970627:   Weight: 218, Body Fat: 29.7%
970714:   Weight: 223, Body Fat: 29.7%
970714:  Counseled for deficiencies in performance and conduct. [Misconduct for failure to comply with the CO's letter 1600 dated 970221. As a result of your unsatisfactory performance you are being administratively reduced for professional incompetence and are recommended for immediate process for administrative separation for failure to maintain Weight Control Standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970828:   Weight: 222, Body Fat: 30.4%
970912:  Weight: 224, Body Fat: 30.7%

970924:  Surgery to back.

971031:  Weight: 231, Body Fat: 27.5%

971031:  Counseled for deficiencies in performance and conduct. [Failure to comply with the CO's letter 6100 dated 970221. As a result of your continued unsatisfactory performance you are being administratively reduced for professional incompetence and are recommended for immediate process for administrative separation for failure to maintain Weight Control Standards.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued
971114:  Weight: 231, Body Fat: 28%.

971204:  Weight: 238, Body fat: 28.5%.

971205:  Medical status of applicant: Applicant found to be recovered from back surgery and finished with surgical course of treatment. Applicant is not expected to return to full duty. The excess weight is not the result of a medical condition.

971209   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 your failure of the Marine Corps Weight Control Program. Applicant's maximum weight is 238 pounds.

971209   Applicant advised of his rights and having 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.

971209   Commanding officer recommended discharge with a General (under Honorable conditions) by reason of unsatisfactory performance due to weight control failure.

971212:  SJA review determined the case sufficient in law and fact.

971215:  GCMCA [Commanding General, Marine Corps Base Hawaii] advised the Commandant of the Marine Corps that the applicant's discharge was directed with a General (under Honorable conditions) by reason unsatisfactory performance due weight control failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980105 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 proper but not equitable (C and D). The Board determined that the applicant’s PRO/CON marks were sufficiently high enough, throughout his abbreviated military career, and in spite of his weight control problems, to warrant a discharge upgrade. Relief is granted as requested.

 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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