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USMC | DRB | 2005_Marine | MD0500447
Original file (MD0500447.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00447

Applicant’s Request
The application for discharge review was received on 20050118. 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 20050428. 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 feel that an upgrade honorable is justified based on my service record.
My discharge was based on this single aspect of my service. My service and promotion record will show that my discharge was inequitable. This matter did not impair my ability to serve, and I did so honorably. I did not receive any nonjudicial punishments or article 15 entries.”

Applicant’s remarks: “A general discharge has prevented me from moving forward with my life. With this burden I am unable to better my situation and provide my family with opportunities. I want to move on with my life and once again be proud of my honorable service to the United States Marine Corps. My discharge would not have happened if our country were in a situation of diplomacy that we are involved in today. I feel the punishment I received was too harsh for this condition.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Two pages from Applicant’s service record
Character reference, dated November 15, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940114 - 940619  COG

 Period of Service Under Review :
Date of Enlistment: 940620               Date of Discharge: 970725

 Length of Service (years, months, days):

         Active: 03 01 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 77

 Highest Rank: LCpl                         MOS: 1391
Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.4 (7)                       Conduct: 4.3 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, RSB, LoA (2)

 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 :

930827:  Pre-enlistment medical exam. Applicant max allowable body fat: 24%, lean body mass (lbs) 149.25, target weight 196.368 (lbs), need to lose 8.632 (lbs).

940620:  Waiver granted. [Type not specified].

950707:  Applicant assigned to Physical Training Platoon for failing 960626 PFT, not within the Marine Corps height and weight standards and failing to maintain a satisfactory level of physical fitness. Applicant to participate in the program for a minimum of 30 consecutive days. Goal for the Applicant is to reach 209 pounds or less and to pass three consecutive PFTs .

Not Dated:       Applicant acknowledged the assignment to the Physical Training Platoon by CO’s letter of 950707: “I verify that I have read and understand the Commanding Officer’s letter dated 07 Jul 1995 concerning my assignment to the Physical Training Platoon. I understand that failure to comply with the guidelines could result in appropriate disciplinary or administrative action.”

951019:  Applicant examined by Medical Officer, Branch Medical Clinic, New River, NC, for Weight Control Program. Applicant’s physical appearance is not due to a pathological disorder. He/She is fit for participation in a physical exercise program. The recommended loss of 1 pound per month and a total of 3 pounds within 6 months is a realistic goal. Height: 73”, weight: 212 lbs, body fat:22%.

951023:  Applicant assigned to weight control program. Applicant determined to be overweight and directed to meet the following weight goal: 2 pounds per month with a total of 12 pounds to be obtained no later than 6 months from this date. “You will participate in the weight control program to meet your goal. Assistance in meeting your weight standards is available through your chain of command. Failure to comply may result in separation from the Naval Service by reasons of failure to maintain Marine Corps height and weight standards. A page 11 entry will be entered into your Service Record Book concerning this counseling.”

951023:  Applicant acknowledged his assignment to the weight control program. Applicant understands that his physical condition does not appear to be due to a pathological disorder and that it is his responsibility to have his weight/height measurements recorded weekly.
960508:  Applicant reexamined by Medical Officer, Branch Medical Clinic, Marine Corps Air Station, New River. Applicant’s physical appearance is not due to pathological disorder. Weight: 215 pounds. Body Fat 21.3%.

960523:  Applicant notified by the Commanding Officer that he [Applicant] had failed to meet the weight/measurement goal in the time allotted. Applicant advised that he is being processed for administrative separation by reason of unsuitability in accordance with MCO P1900.16 and MARCORSEPMAN.

960529:  Applicant acknowledged failure to meet weight goal in time allotted. Applicant understood that he was being processed for administrative separation by reason of unsuitability in accordance with MCO P1900.16.

960601:  Applicant informed eligible but not recommended for promotion to Corporal for the month of June because of my lack of progress in my current assignment to weight control.

960816:  Applicant notified of intended recommendation for discharge by reason of unsatisfactory performance of duties while assigned to the U.S. Marine Corps weight control program. The least favorable characterization you may receive is general (under honorable conditions). CO’s comments: “The basis for discharge is your documented history of failure to make reasonable efforts to achieve and conform to the U.S. Marines Corps weight standards for your height as set forth in MCO 6100.10B. During your assignment to the U.S. Marine Corps weight control program, you have demonstrated an apathetic approach to your weight loss program. In light of significant counseling efforts to encourage you towards your successful weight loss, it can only e concluded that your resulting failure to achieve your weight goal is the lack of effort and self-discipline on your part. By your inaction and unwillingness to respond to counseling, you have demonstrated that you have no potential for further service. Therefore, I am recommending discharge immediately.” [Not signed by Commanding Officer].
960820:  Applicant advised of rights and having elected 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 and to submit a statement.

960821:  Commanding Officer, Marine Wing Support Squadron (MWSS) 272 recommended discharge with a general (under honorable conditions) by reason of unsatisfactory performance of duties while assigned to the weight control program.

961003:  Medically evaluated for weight control. Applicant current weight is 234 lbs, body fat at 32.5%. Failed weight control will dictate recommendation for administrative separation.

961022:  Commanding Officer, Marine Wing Support Group (CO, MWSG) 27 concurs with recommendation by CO, MWSS 272 that the Applicant receive a general (under honorable conditions) discharge by reason of unsatisfactory performance of duties while assigned to the weight control program.

961127:  Applicant informed eligible but not recommended for promotion to Corporal for the month of December 1996 promotion 1 st quarter because he is a member of the Physical Training Platoon and also on weight control.

961216:  SJA review determined the case sufficient in law and fact.

961216:  GCMCA, Commanding General, 2d Marine Aircraft Wing, approved the Applicant's discharge with a general (under honorable conditions) by reason unsatisfactory performance due to unsatisfactory performance of duties is approved, but the execution is suspended for 12 months. Suspension contingent upon achieving a loss of 50% of any weight over his maximum allowable weight within 60 days from the date of this endorsement and a subsequent loss of the remaining 50% within the following 60 days. Upon successful completion of the stated weight lost, the Applicant is to be screened for assignment of an alternate maximum weight. Failure to achieve the stated weight loss will result in vacation of the suspended separation. GCMCA directed that the following Pg 11 entry: “Applicant’s separation approved by CG, 2dMAW. Execution of discharge suspended for 12 months, unless sooner vacated, the discharge will automatically remit. Suspension is contingent upon attaining and maintaining a weight at or below his maximum allowable weight and his satisfactory conduct and performance at all times.”

961218:  SJA review determined the case sufficient in law and fact.

961218:  GCMCA, Commanding General, 2d Marine Aircraft Wing, approved the Applicant's discharge with a general (under honorable conditions) by reason unsatisfactory performance due to unsatisfactory performance of duties is approved, but the execution is suspended for 12 months. Suspension contingent upon achieving a loss of 50% of any weight over his maximum allowable weight within 60 days from the date of this endorsement and a subsequent loss of the remaining 50% within the following 60 days. Upon successful completion of the stated weight lost, the Applicant is to be screened for assignment of an alternate maximum weight. Failure to achieve the stated weight loss will result in vacation of the suspended separation. GCMCA directed that the following Pg 11 entry: “Applicant’s separation approved by CG, 2dMAW. Execution of discharge suspended for 12 months, unless sooner vacated, the discharge will automatically remit. Suspension is contingent upon attaining and maintaining a weight at or below his maximum allowable weight and his satisfactory conduct and performance at all times.”



961218:  Applicant assigned to weight control program.

961218:  Applicant failed physical fitness test.

961218:  SJA review determined the case sufficient in law and fact.

961218:  Commanding General approved Applicant’s discharge with a general (under honorable conditions) by reason of unsatisfactory performance of duties, but suspended execution of discharge for 12 months contingent upon achieving a loss of 50% of any weight over his maximum allowable weight within 60 days from the date of this endorsement and a subsequent loss of the remaining 50% within the following 60 days. Upon successful completion of the stated weight lost, the Applicant is to be screened for assignment of an alternate maximum weight. Failure to achieve the stated weight loss will result in vacation of the suspended separation.

970107:  Counseling Worksheet: Admin sep of LCpl. “Must weigh 220 lbs of less by 18 Feb. Continue to see your nutritionist.”

970114:  Counseling Worksheet: PTP wt cntrl. “See if you can see your nutritionist this week. 11 more pounds by 18 Feb. Bring PFT score up. Lost 3 pounds.”

970121:  Applicant failed physical fitness test.

970207:  Applicant failed physical fitness test.

970211:  Counseling Worksheet: PTP + WTC. “220.5 by 18 Feb or face discharge. Has seen nutritionist on a regular basis and followed. Has lost 6 pounds since last counseling. Body fat 25.9%, -1% body fat since last month. Shoving good motivation.”

970211:  Applicant failed physical fitness test.

970215:  Applicant informed eligible but not recommended for promotion to Corporal due to assignment to weight control IAW MCO 1400.32B paragraph 3F through 3N, as applicable, unless waived by appropriate authority.

970218:  Counseling Worksheet: WTC. “Weigh 209 or less by11 Apr 97. Made 220.5 as asked. Actual weight 218.”

970221:  Applicant failed physical fitness test.

970306:  Applicant failed physical fitness test.

970311:  Applicant failed physical fitness test.

970313:  Counseling Worksheet: “SNM counseled this date on the fact that he must be at or below his max. weight by 970418 or he will be discharged. LCpl says that he feels he will be at his max weight or below on 970418.”

970321   Applicant failed physical fitness test.

970327:  Applicant failed physical fitness test.

970403   Applicant failed physical fitness test.

970410:  Applicant failed physical fitness test.

970417:  Applicant failed physical fitness test.

970507:  Applicant notified that the CO, MWSS 272 intends to recommend to the GCMCA that the Applicant’s suspended general (under honorable conditions) discharge by reason of unsatisfactory performance of duties due to unsatisfactory performance of duties while assigned to the weight control program be vacated by reason of failure to achieve any weight loss under the terms of the suspension given by the Commanding General. Applicant consulted with counsel. Applicant to provide a written statement(s) in rebuttal to this proposed vacation proceeding.

970509:  Applicant submitted a rebuttal on the characterization of separation.

970514:  CO, MWSS 272 recommended that the suspended discharge by reason of unsatisfactory performance of duties due to unsatisfactory performance of duties while assigned to the weight control program be vacated and recommended that the Applicant be given an honorable discharge vice general (under honorable conditions).

970527:  CO, MWSG 27, concurred with the CO, MWSS 272 recommendation that the suspended discharge by reason of unsatisfactory performance of duties due to unsatisfactory performance of duties while assigned to the weight control program be vacated. CO, MWSG 27 also concurs with the CO, MWSS 272 recommendation that the Applicant’s discharge be upgraded to honorable.

970714:  SJA review determined the case sufficient in law and fact.


970714:  GCMCA, Commanding General, 2d Marine Aircraft Wing, advised the Commandant of the Marine Corps that the Applicant's suspension is vacated and that the Applicant will be separated with a general (under honorable conditions) by reason unsatisfactory performance due unsatisfactory performance of duties while assigned to the U.S. Marine Corps weight control program.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970725 with a general (under honorable conditions) discharge due to unsatisfactory performance of duties while assigned to the U.S. Marine Corps 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. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge 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. The Applicant’s service was marred by 2 retention warnings associated with his assignment to the Physical Training Platoon and the Weight Control Program. The Applicant failed to meet the weight/height measurement goals within the prescribed time frame and was recommended for discharge by reason of unsatisfactory performance of duties while assigned to the weight control program. Medical Officers examined the Applicant on three occasions and determined that the Applicant’s physical appearance was not due to a pathological disorder, that the Applicant was fit for participation in an exercise program, and that the weight loss goal was a realistic goal. The GCMCA suspended the Applicant’s discharge and the Applicant was given the opportunity to lose weight in order to conform to the U. S. Marine Corps standards. The Applicant failed to achieve the weight loss specified by the terms of the suspension and failed the Marine Corps Physical Fitness Test 11 times; therefore, the suspension was vacated. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized to consider 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16E), effective 18 Aug 95 to 31August 2001.

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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