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NAVY | DRB | 2004 Marine | MD04-00664
Original file (MD04-00664.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-00664

Applicant’s Request
The application for discharge review was received on 20040312. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20041001. 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 unanimous 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 stated

Applicant’s issues, as stated on the application:

1. “I am requesting a change in my discharge status from General Under Honorable Conditions to an Honorable Discharge. The discharge was inequitable because it was due to a problem with my weight and not my service. I sustained an injury while on active duty which is documented in my service record. As a result of this injury I was on and off of limited/light duty and could not “PT” normally, causing a weight gain. My service and job proficiency were excellent although I was not promoted due to my weight gain. Please accept this petition on my behalf. Thank you for your time.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                930108 - 930207  COG

 Period of Service Under Review :
Date of Enlistment: 930208               Date of Discharge: 970929

 Length of Service (years, months, days):

         Active: 04 07 22
         Inactive: None
Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 96

 Highest Rank: LCpl                         MOS: 6153

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (10)                      Conduct: 4.3 (10)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, CA, CC, GCM, MUC

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/WEIGHT CONTROL FAILURE, authority: MARCORSEPMAN 6215.

 Chronological Listing of Significant Service Events :

950816:  NMC, San Diego referred Applicant to PEB due to persistent chest pain caused by chronic costochondritis.
960121:  President, PEB found Applicant fit for duty.

 960911:  Medical evaluation. Height: 70 inches, weight: 229 lbs. Body fat: 21.3%. Recommended to lose 6.2 pounds per month for a total of 37 pounds in 6 months. Applicant’s physical condition is not due to a pathological disorder and Applicant is fit for participation in a physical exercise program.

960911:  Assigned to six month weight control program (WCP). Weight: 229 lbs. Maximum weight allowed: 192 lbs.

961231:  Counseled for deficiencies in performance and conduct. Specifically, failure to pass the PFT (31:16 run time). Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970316:  Failed to meet weight goal at end of six month WCP. Current weight: 215 lbs.

970425:  Counseled for deficiencies in performance and conduct. Specifically, failure to meet Marine Corps weight standards. Tasked to lose 37 pounds in 3 months. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970425:  Assigned to three month weight control program (WCP). Weight: 215 lbs. Maximum weight allowed: 192 lbs.

970725:  Failed to meet weight goal at end of three month WCP. Current weight: 227 lbs.

970805:  Counseled for deficiencies in performance and conduct. Specifically, failure to meet Marine Corps weight standards. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970818:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of unsatisfactory performance of duties due to weight control failure.

970818:          Applicant advised of his rights and having consulted 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.

970818:  Commanding Officer recommended discharge general (under honorable conditions) due to unsatisfactory performance of duties due to weight control failure.

970911:  SJA review determined the case sufficient in law and fact.

970917:  GCMCA [CG, MCB Hawaii] directed the Applicant's discharge under honorable conditions (general) by reason of unsatisfactory performance of duties due to weight control failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 19970929 with a general (under honorable conditions) due to unsatisfactory performance 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 proper and equitable (C and D).

Issue 1. 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 his failure to make a reasonable effort to maintain his weight in accordance with Marine Corps height and weight standards. Based upon the Applicant’s lack of progress while assigned to a weight control program, the Applicant’s command determined he was unqualified for further service by reason of unsatisfactory performance. 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. While he may feel that a medical condition was a factor that contributed to his actions, he was found fit to participate in a physical exercise program. The record reflects his disregard for the requirements of military discipline and compliance with regulations, and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade to honorable is inappropriate. Relief denied.

 The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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. 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 31August 2001.

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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