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NAVY | DRB | 2004 Marine | MD04-00979
Original file (MD04-00979.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00979

Applicant’s Request
The application for discharge review was received on 20040526. 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 20041022. 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 was discharged for failure to comply with height and weight standards. I never got into any trouble. I even received a Good Conduct Medal. I would really like you to consider this upgrade because I would like to use my GI Bill for going back to school and with a General Under Honorable Conditions discharge I am unable to use these benefits. I have met the length of service criteria and have paid $1,200 dollars into it.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’ s DD Form 214
GCM Certificate

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990708 - 990830  COG

 Period of Service Under Review :
Date of Enlistment: 990831               Date of Discharge: 021210

 Length of Service (years, months, days):

         Active: 03 03 11
         Inactive: None

 Age at Entry: 19                          Years Contracted: 5

Education Level: 12                        AFQT: 44
Highest Rank: PFC                          MOS : 6153

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (7)                       Conduct: 3.8 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM

 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 :

000404:  Appropriately credentialed health care provider determined that Applicant’s weight condition is not due to a pathological disorder. Recommended loss of 1lb. per month for six months. Ht: 69”, Wt: 192lbs., 28% body fat; maximum weight allowed: 186lbs.

000410:  Assigned to the Weight Control Program.

000413:  Counseled concerning deficiency, specifically, failure to meet minimum PFT standards on 000330, advised of assistance available and corrective actions. Discharge warning issued.

000425:  Counseled concerning deficiency, specifically, UA from PT at 0445, 000420, advised of assistance available and corrective actions. Discharge warning issued.

000717:  Counseled concerning deficiency, specifically, failure to make progress while assigned to the weight control program. Weight is 214lbs. with 29% body fat. Advised of assistance available and corrective actions. Discharge warning issued.
000927:  Counseled concerning deficiency, specifically, failure to meet minimum PFT standards on 000925 by not executing 3 pull-ups and failing the run, advised of assistance available and corrective actions. Discharge warning issued.

010108:  Appropriately credentialed health care provider determined that Applicant’s weight condition is not due to a pathological disorder. Recommended loss of 3lbs. per month for six months. Wt: 220lbs., 25% body fat; assigned weight goal of 214lbs.

Undated:         Applicant’s statement concerning his scheduled Competency Review Board.

010309:  Reduced to Pvt as a result of a Competency Review Board due to his failure to adhere to USMC height and weight standards.

020225:  Appropriately credentialed health care provider determined that Applicant’s weight condition is not due to a pathological disorder. Recommended loss of 15lbs. per month for six months. Wt: 252lbs., 32% body fat; assigned weight goal of 192lbs.

020225:  Counseled concerning deficiency, specifically, failure to make progress while assigned to the weight control program (WCP). Weight is 253lbs. with 33% body fat. Extended on the WCP for three months. Directed to lose 20lbs. per month for 3 months. Advised of assistance available and corrective actions. Discharge warning issued.

020404:  Counseled concerning deficiency, specifically, failure to make progress while assigned to the weight control program. Applicant failed to lose 20lbs. and/or 5% body fat during March, 2002. Advised of assistance available and corrective actions. Discharge warning issued.

020530:  Weight: 257lbs, 32% body fat.

020612:  Counseled concerning deficiency, specifically, failure to make progress while assigned to the weight control program and failure of a PFT. PFT total score was 57. Assigned to remedial physical conditioning program. Advised of assistance available and corrective actions. Discharge warning issued.

020812:  Counseled concerning deficiency, specifically, failure of a second subsequent PFT. Advised that he will be processed for administrative separation.

021020:  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 unsatisfactory performance while assigned to the weight control program, and failure of repetitive PFTs.
Undated:         Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

021030:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of unsatisfactory performance.

021122:  GCMCA [CG, 2d MAW] advised the Commandant of the Marine Corps that the Applicant's discharge was directed with a general (under honorable conditions ) by reason of unsatisfactory performance while assigned to the weight control program.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021210 with a general (under honorable conditions) 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 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 numerous adverse counseling entries due to his unsatisfactory performance while assigned to weight control and physical conditioning programs. The Applicant’s conduct evaluation average, which is below the standard required for an honorable discharge, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service. An upgrade to honorable is inappropriate. Relief denied.

 The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
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 P1900.16F), effective 01 September 2001 until Present.

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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