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USMC | DRB | 2002_Marine | MD02-01179
Original file (MD02-01179.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-01179

Applicant’s Request
The application for discharge review, received 020805, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region by his counsel only; that he did not wish to appear personally. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant 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 030722. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was four to one that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. (Equity Issue) His weight problems aside, this former member avers that his SRB shows that he served honorably and faithfully as reflected by his overall performance and conduct markings, MM and LOA. On this basis, he opines that the Board’s relief with recharacterization of his service to fully honorable is warranted.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Handwritten statement from Applicant, dated June 26, 2002
Appointment of Veterans Service Organization as claimant's representative, dated July 1, 2002 (3 copies)
Applicant's DD Form 214 (2 copies)
Eighty pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990513 - 991114  COG

 Period of Service Under Review :
Date of Enlistment: 991115               Date of Discharge: 020326

 Length of Service (years, months, days):

         Active: 02 04 12
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 41

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (4)                       Conduct: 4.1 (4)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, MM, Letter of Appreciation

 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 :

990505:  Weight waiver.

990506:  Medical physical: Weight: 233 pounds.

990727:  Weight: 233.

991115:  Weight: 221.

 000803:  Weight Control/Distribution Program: Applicant's physical appearance and/or weight and body fat percentage is not due to a pathological disorder. Applicant is recommended to lose 3.5 pounds and 0.3% body fat per month and a total of 21 pounds and/or 2% body fat within six months is a realistic goal.
000804:  Applicant assigned to Battalion Remedial Physical training.

000807:  Applicant assigned to weight control program.

 001031:  Applicant released from weight control/military appearance program. Current weight: 215 pounds with a body fat of 18%.

010510:  Weight Control/Distribution Medical Evaluation: Applicant placed on weight control program. Applicant's physical appearance and/or weight and body fat percentage is not due to a pathological disorder. Applicant is recommended to lose 9.75 pounds and 1.33% body fat per month and a total of 29 pounds and/or 4% body fat within three months is a realistic goal.
010523:  Counseled for deficiencies in performance and conduct. [Failure to obey a lawful order and dereliction of duty by sleeping on duty, to wit: patrol vehicle, at Adj. Bldg #5239, Chapel, on board Camp McToreous, on or about 1230, 16 Apr 01.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010606:  Applicant informed eligible but not recommended for promotion to Cpl for the month of July because of a page 11 entry.

010628:  Applicant informed eligible but not recommended for promotion to Cpl for the month of August because of weight standards & PFT failure.

010726:  Counseled concerning deficiency, specifically, failure to conform to Marine Corps weight standards and body fat percentage (current weight/body fat as of 010705: 232 pounds/20%). Applicant understood that effective 010510 he was placed on the official weight control program for his second assignment and per MCO 6100.10b, he had 90 days to meet his weight goal of 203 pounds and 18%. His assignment expires 010810. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010730:  Applicant informed eligible but not recommended for promotion to Cpl for the month of Sept because of weight control and remedial PT.

010808:  Counseled concerning deficiency, specifically, failure to conform to Marine Corps physical fitness standards in that SNM failed the semiannual Physical Fitness Test during June 2001. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010827:  Weight Control Extension Letter directed Applicant to meet the following reduction goals of 28 pounds and 2% body fat to be obtained no later than one month from this date.

010830:  Applicant informed eligible but not recommended for promotion to Cpl for the month of Sept because of weight control/remedial PT.

011025:  Applicant informed eligible but not recommended for promotion to Cpl for the month of Dec due to remedial PT program.

011030:  Applicant found to be overweight not due to a pathological disorder.

011031:  Weight Evaluation: 233 pounds.

011206:  Applicant informed eligible but not recommended for promotion to Cpl for the month of Jan because of weight control.

011227:  Applicant informed eligible but not recommended for promotion to Cpl for the month of Feb because of weight control.

020204:  Counseled concerning deficiency, specifically, failure to conform to Marine Corps weight standards and body fat percentage. Advised of insufficient progress while assigned to the Weight Control/Military Appearance Program. Assigned for the second time on 010510 for a 90 day period with a weight/body fat of 232 pounds and 22%. This program expired on 010810 and applicant was given a 30 day extension on the program and has not made sufficient progress (current weight/body fat on 011026: 227 pounds/21%). Applicant has not met the weight or body fat standards according to MCO 6100.10b and is being recommended for separation from the Marine Corps. Advised of assistance available. Applicant chose not to make a statement.

020212:  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 failure to make a reasonable effort to conform to weight standards as set forth in Marine Corps directives while being assigned to the weight control program for the second time. Subsequently, on 27 August 2001, he was granted a one-month extension to the program and again did not make progress to achieve the recommended goals, in fact, applicant was 6 pounds heavier and gained 5% body fat than when initially assigned to the weight control program. By his actions, he has demonstrated that he lacks the desire and discipline for further service.
020212:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

020221:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of unsatisfactory performance due to failure to conform to weight standards.
020304:  GCMCA [Commander, Marine Corps Base, Camp Smedley D. Butler, Okinawa] advised the Commandant of the Marine Corps that the Applicant's discharge was directed with a general (under honorable conditions) by reason unsatisfactory performance.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 020326 with a general (under honorable conditions) due to unsatisfactory performance due to failure to conform to weight standards (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).

Issue 1. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by adverse counseling entries for his failure to maintain the required weight standards, and for failing a PFT and sleeping on post. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

Issue 2. The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate the reason for which he was discharged. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. Representation at a personal appearance hearing is 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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