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NAVY | DRB | 2004 Marine | MD04-01173
Original file (MD04-01173.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01173

Applicant’s Request
The application for discharge review was received on 20040714. 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 20050201. 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 respectfully request an honorable discharge due to the fact, I was discharged for unsatisfactory performance which was due to a back injury which I recieved on active duty and due to command influence the squadron doc: (doc L_) would not acknoldege my injury”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
DD Form 149 (1 p.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                970828 - 970909  COG

 Period of Service Under Review :
Date of Enlistment: 970910               Date of Discharge: 020627

 Length of Service (years, months, days):

         Active: 04 09 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 42
Highest Rank: PFC                          MOS : 6092

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (12)                      Conduct: 4.1 (12)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, SSDR, NUC, LA (3)

 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 :

981204:  Counseled concerning deficiencies, specifically, failure to adhere to weight and height standards, and not having the correct rank insignia on your uniforms during a CGI, advised of assistance available and corrective actions. Discharge warning issued.

981228:  Counseled concerning deficiency, specifically, UA from PTP on 981203.

990415:  Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions. Discharge warning issued.

990622:  Nonjudicial punishment for violation of the UCMJ, Article 86: UA from base gym for PT at 0530, 990504.
         Awarded forfeiture of $200.00 for one month, 29 days of CCU, and reduction to Pvt.

000725:  Assigned to the Physical Training Platoon.      

000725:  Medical Eval, (MCAS New River Branch Med Clinic): Applicant's physical condition is not due to a pathological disorder, fit for participation in a physical exercise program, and recommended loss of 4 pounds per month and a total of 24 pounds within six months as a realistic goal.

000727:  Assigned to weight control program. Directed to lose 4lbs. and 1% body fat per month for three months. Goal is 186lbs and 18% body fat.

010106:  Counseled concerning deficiencies, specifically, leaving 782 gear adrift in the berthing area, advised of assistance available and corrective actions. Discharge warning issued.

010827:  Counseled concerning deficiencies, specifically, overweight (second assignment) (current weight/body fat is 219/27; max is 186/18), and failure to pass the PFT on 010822, advised of assistance available and corrective actions. Discharge warning issued.

020115:  Medical Eval, (MCAS New River Branch Med Clinic): Applicant's physical condition is not due to a pathological disorder.
020319:  Training officer advised the Commanding Officer that Applicant was initially assigned to the weight control program on 980321 to 990322 and was reassigned for the second time on 010822. Member's progress has been unsatisfactory and administrative separation is recommended.

020524:  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. Applicant does not qualify for separation based upon weight control failure, because he did not make a reasonable effort to conform to Marine Corps height/weight standards.

020524:  Applicant advised of 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.

020524:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of unsatisfactory performance.

020618:  SJA review determined the case to be sufficient in law and fact.

020618:  GCMCA [Commander, 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 20020627 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 award of nonjudicial punishment (NJP) on one occasion for failure to be at his place of duty and adverse counseling entries on other occasions. 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. The Applicant’s statements and review of his service and medical records do not establish that he was inequitably or improperly assigned to the weight control program, or that his medical condition excused his unsatisfactory performance while assigned to the weight control program . 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. 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 “ http://Boards.law.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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