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USMC | DRB | 2002_Marine | MD02-00469
Original file (MD02-00469.rtf) Auto-classification: Denied


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


ex-Sgt, USMC
Docket No. MD02-00469

Applicant’s Request
The application for discharge review, received 020226, 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. Subsequent to the application, the applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021105. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the applicant’s service. The Board’s vote was four to one that the character of the discharge shall change. The discharge shall change to: HONORABLE/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

 1. I served over ten years with excellent conduct record. Never failed a Physical Fitness Test, but passed with high scores. Always maintained an outstanding personal appearance. Always was ready to deploy at a moments notice. I feel that some of the mentioned where not considered when the process was started for discharge. The members that review this where concerned about following the weight control order to the "T". At which time the order that was written was vague. With the review of my military records and the attached documents I hope you consider this valid for an upgrade in discharge.
2. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 7/16/02 and the following comments are hereby submitted. The applicant was a good marine, not withstanding the issue of weight control, this is a veteran that served in a combat zone. He was awarded the Kuwait Liberation Medal (Saudi Arabia). We ask the Board to consider SECNAVINST 5420.174C PARA 9.3C (1)(d) pertaining to combat service during the review of the applicant request. We fully support his contention that his discharge be upgraded.
We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for upgrade to Honorable.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of applicant's DD Form 214
Copy of applicant's DD Form 215 (2 copies)
 Six pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                890810 - 900701  COG
          Active: USMC              900702 - 940414  HON
                   USMC             940415 - 980409  HON

 Period of Service Under Review :
Date of Enlistment: 980410               Date of Discharge: 001027

 Length of Service (years, months, days):
         Active: 01 09 18
         Inactive: None
Age at Entry: 26                          Years Contracted: 4

 Education Level: 12                        AFQT: 53
Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages: All enlisted performance reports were available to the Board for review.
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, KLM (K), KLM (SA), SASM with 3 Stars, GCM (3), NMCAM, AFEM, HSM, JMU with 1 Star, NUC, MUC, Letter of Appreciation (3), MM (3), Certificate of Commendation (2)

 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 :

980410:  Applicant reenlisted for 4 years.
990702:  Counseled concerning deficiency, specifically, failure to meet USMC height and weight standards as evidenced by the disenrollment for Recruiter's School due to being out of standards. As of this date applicant’s body fat and height and weight are within USMC standards. His training record reflects that he was assigned and successfully completed the weight control program on 24 Feb 94 and 17 Feb 98. Applicant’s preservice 6105 entry for ht/wt standards is not valid, therefore this serves as the last notification. Discharge warning issued.
000420:  Applicant determined to be overweight. Applicant directed to meet the following reduction goals of 8 pounds per month and 2 percent body fat per month. The weight goal is 192 pounds or 18% body fat per month to be attained no later than 3 months from this date.
000424:  Weight Control Tracking Chart: 216 pounds, 24% body fat.
000522:  Weight Control Tracking Chart: 220 pounds, 26% body fat.

 000530:  Weight Control Tracking Chart: 221 pounds, 27% body fat.
000605:  Weight Control Tracking Chart: 220 pounds, 26% body fat.
000612:  Control Tracking Chart: 211 pounds, 24% body fat.
000620:  Weight Control Tracking Chart: 206 pounds, 23% body fat.

 000705:  Weight Control Tracking Chart: 207 pounds, 22% body fat.
000710:  Weight Control Tracking Chart: 202 pounds, 22% body fat.
000717:  Weight Control Tracking Chart: 202 pounds, 22% body fat.
000720:  Weight Control Tracking Chart: 202 pounds, 22% body fat.

 000721:  Applicant reexamined and found to be overweight not due to a pathological disorder.
000908:  Applicant advised on 7 Sep 00 that he was being processed for an involuntary administrative separation due to his previous two assignments to Military Weight Control Program.
000912   Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of unsatisfactory performance of duties. The basis for discharge is the failure to conform to Marine Corps height, weight, and body fat standards, as evidenced by the failure to attain and maintain the prescribed weight goal and/or maximum allowable body fat percentage within a reasonable period of time.
000912   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.
000913:  Commanding Officer recommended discharge under honorable conditions (general) by reason of unsatisfactory performance of duties while assigned to the weight control program.

 001013:  SJA review determined the case sufficient in law and fact.

001013:  GCMCA [Commander, 2d Marine Aircraft Wing] advised the Commandant of the Marine Corps that the applicant's discharge was directed under honorable conditions (general) by reason unsatisfactory performance of duties while assigned to the weight control program.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001027 under honorable conditions (general) due to unsatisfactory performance while assigned to the weight control program (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).
Issue 1. The Board found that the applicant’s characterization of service should have been based on the applicant’s overall service record during the current enlistment. The Applicant received outstanding fitness reports under the previous reporting system and had no derogatory information in his record other than his failure to maintain height and weight standards. Therefore the applicant’s discharge is equitably characterized as honorable. Relief granted.
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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