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USMC | DRB | 2003_Marine | MD03-00639
Original file (MD03-00639.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00639

Applicant’s Request
The application for discharge review was received on 20030227. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20040114. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety and 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 change. The discharge shall change to: HONORABLE/ INVOL DISCHARGE WEIGHT CONTROL FAILURE, authority: ALMAR 57/93 [CMC 161805ZFEB93].


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 No issues were submitted by the Applicant.


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)                901026 - 910318  COG

 Period of Service Under Review :
Date of Enlistment: 910319               Date of Discharge: 941031

 Length of Service (years, months, days):

         Active: 03 07 13
         Inactive: None
Age at Entry: 24                          Years Contracted: 5

 Education Level: 14                        AFQT: 72

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (9)                       Conduct: 4.4 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, GCM, LOA x2

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/INVOL DISCHARGE WEIGHT CONTROL FAILURE, authority: ALMAR 57/93 [CMC 161805ZFEB93].

 Chronological Listing of Significant Service Events :

920608:  Counseled for deficiencies in performance and conduct. Specifically, failure to meet Marine Corps weight standards. Assigned to Battalion Weight Control Program with an initial weight of 225 lbs. Weight goal of 197 lbs. is to be obtained within 6 months. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

931209:  Appropriately credentialed health care provider determined that the Applicant’s overweight condition is not due to a pathological disorder.

931213:  Assigned to Battalion Weight Control Program. Present weight is 220 lbs. Advised to lose 30 lbs. in six months. Body fat is 25.9%.
940328:  Applicant granted a 3 month extension of the Battalion Weight Control Program.
940621:  Counseled for deficiencies in performance and conduct. Performance while on the Battalion remedial physical fitness program has been substandard. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940707:  Applicant weight is 208.5 lbs. Weight goal is 192 lbs. Body fat is 23.7%.

940724:  Appropriately credentialed health care provider determined that the Applicant’s overweight condition is not due to a pathological disorder.

940809:  Counseled for deficiencies in performance and conduct. Unsatisfactory completion of the Battalion Weight Control Program. During the period 28 March 94 – 07 July 94 Applicant lost a total of 4.5 pounds. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940812:  Applicant notified of intended recommendation for discharge under honorable conditions (general). The factual basis for the recommendation was Applicant’s failure to achieve his weight goal of 192 pounds after being assigned to the weight control program on 931213.

940812:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to submit a statement and obtain copies of the documents used to support the basis for the separation.

940817:  Commanding Officer recommended discharge under honorable conditions (general). The factual basis for the recommendation was Applicant’s failure to achieve his weight goal of 192 pounds after being assigned to the weight control program on 931213.

940921:  SJA review determined the case sufficient in law and fact.

940928:  GCMCA [CO, 2d FSSG] directed the Applicant's discharge under honorable conditions (general) by reason of unsatisfactory performance – failure to conform to weight standards.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW
Discussion

The Applicant was discharged on 19941031 under honorable conditions (general) 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 not proper or equitable (C and D).
The Applicant introduced no decisional issues for consideration by the Board. The Board found that in the Applicant’s case, the characterization of service should have been based upon the Applicant’s average proficiency and conduct markings in accordance with paragraph 5.D of reference (A). A review of Applicant’s records indicated an honorable discharge was warranted. Applicant’s performance and behavior marks were above the minimum standard required for an honorable discharge. Therefore, relief is granted.
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. ALMAR 57/93 [CMC 161805ZFEB93] revised enlisted separation policy for weight control failure. It cancelled paragraph 6206.1 of the Marine Corps Separation and Retirement Manual.

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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