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USMC | DRB | 2005_Marine | MD0500147
Original file (MD0500147.rtf) Auto-classification: Denied


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


ex-Pvt, USMC
Docket No. MD05-00147

Applicant’s Request
The application for discharge review was received on 20041020. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229. 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: UNDER HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance-Failure to conform to weight standards (administrative discharge board not required), authority: MARCORSEPMAN, Para 6206.1

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated
Applicant’s issues, as stated on the application:
1. “I’m tring to work with the Dept. of Defense on oversea’s contract’s but my General Discharge is keeping me from being deployed. The company’s Im trying to work with ask for Honorable Discharges, they state that everything else of experience was good except for my discharge.
Justification: When I returned from Desert Shield/Storm, my father was killed in a car accident and hit me hard. I was depressed and gained weight. I tied to lose weight weight, but I couldn’t. I know that if my father was not killed, I would probably be in the Marine Corps still.
So, I would like the Dept. of Navy to upgrade my General Discharge to Honorable Discharge.

 Note that, I returned to the States on April 18, 1991, father killed on June 30 1991 He spent 20 yrs in the Air Force.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Completion Certificate, Ohio Peace Officer Basic Training Program, dtd June 17, 2000
Certificate of Appreciation for the period 14 June 2003 to 14 June 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
          Inactive: USMCR (J)               890421 - 890625  COG
Period of Service Under Review :
Date of Enlistment: 890626               Date of Discharge: 920124

 Length of Service (years, months, days):
         Active: 02 06 21                  Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 40
Highest Rank: PFC                          MOS: 0311 (Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 3.8 (8)                       Conduct: 3.6 (8)

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, NDSM, SASM (w/2 stars), NUC

 Days of Unauthorized Absence: (8) 900717 - 900724
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance-Failure to conform to weight standards (administrative discharge board not required), authority: MARCORSEPMAN, Para 6206.1
Chronological Listing of Significant Service Events :

900108:  NJP for violation of UCMJ, Article 86 (2 specs):Specification 1: … absent from appointed place of duty …Specification 2: … absent from appointed place of duty … firewatch.Awarded forfeiture of $100.00 per month for 1 month, and 7 days restriction. Forf of $50.00 per mo for 1 mo susp for 3 mos. Not appealed.
 900309:  Medical evaluation in reference to a psychiatric consultation for a diagnosis of “Conditional Suicidal Ideation.”          AXIS I: Occupational Problem              AXIS II: Passive Aggressive Personality Traits
         “… the member (Applicant) is using self-inflicted injuries in order to manipulate his command to separate him. This is misconduct and should be identified and documented as such. No psychiatric follow-up is required. ”
900320:  Not recommended for promotion due to failure to meet Marine Corps weight standards. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900531:  Not recommended for promotion because of immaturity, irresponsible performance and failure to meet Marine Corps weight standards. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
900627:  Not recommended for promotion because of poor performance and lack of initiative. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 900815:  NJP for violation of UCMJ, Article 86 (2 specs):Specification 1: UA … from company formation.Specification 2: UA 0901, 900716 to 0800, 900724 …Awarded forfeiture of $189.00 per month for 1 month, and 14 days restriction and extra duties. Forf, restriction and extra duties susp for 6 mos. Not appealed.
901111:  Counseled for deficiencies in performance and conduct. [Poor judgment, lack of respect for good order and discipline, lack of respect for authority, poor attitude.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
901122:  NJP for violation of UCMJ, Article 86: UA fr morning formation …violation of UCMJ, Article 89: … was disrespectful in language …violation of UCMJ, Article 91: … was insubordinate in conduct toward Cpl … Awd red to E-1/Pvt, forf of $348.00 per month for 2 months, 30 days restriction and extra duties and 30 days Correctional Custody. 30 days restriction and 30 days Correctional Custody susp for 6 mos. Not appealed.
 910519:  Applicant’s physical appearance/weight does not meet acceptable Marine Corps standards. “(He) has been advised that the loss of 3 pounds per month and total of 18 pounds in a 6 month period is a realistic goal.
910520:  Program prescribed by a credentialed health care provider recommended a loss of 3 pounds per month and total of 18 pounds in a 6 month period was a realistic goal. The Applicant’s condition was “not due to a pathological disorder. ”
910612:  Not recommended for promotion due being over weight by 18 lbs. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910814:  Counseled for deficiencies in performance and conduct. [Letter of indebtness for $1420.62, lack of concern, poor attitude, lack of financial planning.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910827:  Not recommended for promotion due being overweight by 37 pounds an increase of 19 pounds in a month period. Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
910827:  Counseled for deficiencies in performance and conduct. [Numerous page 11 entries concerning overweight, lack of respect, immature, poor performance.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
911223:  Request for legal services noting Applicant “has had a net gain of 10 pounds throughout the period of weight control, which is 40 pounds overweight. ”
920103:  Applicant notified of intended recommendation for discharge under honorable conditions (general). The factual basis for the recommendation was the Applicant’s “failure to achieve his weight goal of 187 pounds after being assigned to the weight control program. ”
920103:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights to include the right to obtain copies of the documents used to support the basis for the separation.
920103:  Commanding officer recommended discharge under honorable conditions (general). The factual basis for the recommendation was the Applicant’s “failure to achieve his weight goal of 187 pounds after being assigned to the weight control program.”
 920110:  SJA review determined the case sufficient in law and fact.
920114:  GCMCA [Commanding General, 2d Marine Division] 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 19920124 under honorable conditions (general) due to unsatisfactory performance – 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel the trauma from his father’s death was a contributing factor to his failure to maintain Marine Corps standards, it does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the United States Marine Corps. In fact, the Applicant’s weight control problems are documented a year prior to the trauma he alleges as the catalyst for his failure to maintain Marine Corps standards. Additionally, the Applicant’s service record is marred by the award of nonjudicial punishment (NJP) on three separate occasions as well as several negative page eleven counseling entries unrelated to his weight control problem. It should be noted that this documented misconduct could have resulted in an administrative separation leading to a discharge characterization of Under Other Than Honorable Conditions . Most Marines serve honorably while complying with the rules and regulations governing conduct in the Marine Corps; thereby, earning their honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, as noted above, the Board discovered no impropriety or inequity and considers the Applicant’s discharge proper and equitable. T his issue does not serve to provide a foundation upon which the Board can grant relief.

T here 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 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 P1900.16D, effective 890627 until 920309, except for subparagraph 1, which was retroactively changed by ALMAR 57/93, effective 920310) .

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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:
                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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