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USMC | DRB | 2005_Marine | MD0500509
Original file (MD0500509.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00509

Applicant’s Request
The application for discharge review was received on 20050126. 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 20050601. 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)/WEIGHT CONTROL FAILURE, authority: MARCORSEPMAN 6215.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issues, as stated on the application:

1. “I had served 4 years and 7 months of my 5 year contract. I consistently received average pros and cons during my military career. I never had any disciplinary action taken against me and I received my good conduct medal. The reason I was discharged was an inability to maintain weight standards, although I consistently passed my PFT’s. I followed all instruction, directions, and training to meet the weight requirements and was able to do so until July 2003. In July 2003 my wife went into premature labor with our first child and was air lifted to Seattle. While TDY to Seattle during this time, the stress of the situation overwhelmed me and I started eating to compensate. Upon my return to duty I found myself unable to return to the weight required in the amount of time allotted. In the course of attempting to follow set regimen I injured my right knee for which I am currently receiving VA disability. For 4 years and 7 months I served my country honorably and without question and would have reenlisted if able to achieve and maintain weight standards. Thank you for your time and consideration in reviewing my request for a change of discharge status to honorable.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’ rating decision from Department of Veterans Affairs, dated July 29, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990430 - 990727  COG

 Period of Service Under Review :
Date of Enlistment: 990728               Date of Discharge: 040301

 Length of Service (years, months, days):

         Active: 04 07 04
         Inactive: None
Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 63

 Highest Rank: LCpl                         MOS: 6313

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

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

 Days of Unauthorized Absence: None

*No marks found in service record.

 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 :

990407:  Applicant granted District level waiver for being overweight.

990430:  Applicant granted medical waiver for enlistment due to history of asthma.
010713:  Counseled for deficiencies in performance and conduct. [Concerning your assignment to the Marine Corps Body composition program. Specifically, you failed to properly maintain your body composition as required by MCO P1600.12. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC. You are advised that this subsequent assignment is for a 3-month period. Specific recommendations for corrective action are: Meet your weight/body fat reduction goals by losing the prescribed 6 lbs and N/A percent body fat per month and actively participate in your diet and exercise program.] Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021112:  Body Composition Program (BCP) Evaluation. The Commanding Officer requests that a medical evaluation be conducted to determine the Applicant’s medical status for BCP and Remedial Physical Conditioning Program (RPCP) participation. Applicant has been advised that the loss of 12 pounds or 4 percent body fat is required and this reduced weight/body fat percentage must be maintained within the 6-month BCP assignment period.

021112:  Medical officer found Applicant not within body composition standards for the following reason: Not to an underlying cause or associated disease. Applicant is fit to participate in a BCP and remedial physical conditioning program.

021125:  Commanding Officer notifies Applicant of assignment to a 6-month BCP as a second assignment. Applicant directed to meet the weight reduction goal of 2 pounds or a body fat reduction goal of 1 percent per month. Applicant’s goal is to lose 12 pounds and 4 percent body fat. Applicant’s mandatory participation in the BCP begins 021125 and ends on 030525. Applicant signed acknowledgement.








021126:  Counseled for deficiencies in performance and conduct. Reassignment to the Marine Corps Body Composition Program. [“Specifically, you failed to properly maintain your body composition as required by MCO P1600.12 for a second time. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC. You are advised that this subsequent assignment is for a 6-month period. Specific recommendations for corrective action are: Meet your weight/body fat reduction goals by losing the prescribed 12 lbs and 4 percent body fate per month and actively participate in your diet and exercise program. “] Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021126:  Applicant informed eligible but not recommended for promotion to Corporal for the month of December 2002, January, February, March 2003 because of a recent PFT failure.

030328:  Body Composition Program Evaluation: Applicant has been participating in the BCP and remedial physical conditioning program for 4 months. Applicant has lost 1 pound and gained 1 percent body fat since being assigned to the BCP on 021125. Commanding Officer request a medical reevaluation based on the progress made towards weight and body fat reduction goals. If weight and body fat reduction goals are not being met or maintained, verify the diagnosis of no underlying cause or associated disease.

030528:  Medical officer found Applicant’s present body composition status is not due to an underlying cause or associated disease. Participation in the BCP and remedial physical conditioning program should continue until program assignment expires.

030530:  Commanding Officer notifies Applicant of results of Body Composition Program Evaluation. Based on your progress while assigned to the BCP, it has been determined that you have attained and maintained the Marine Corps’ body composition standards, and will be officially removed from the BCP. Second assignment participants: If at any time during your Marine Corps career you fail to meet the body composition standards a third time you will automatically be processed for administrative separation.

031008:  Body Composition Program (BCP) Evaluation. Applicant found not to be within the Marine Corps standards for height and weight at the semi-annual PFT weigh-in. Applicant counseled that he will be processed for administrative separation due to failure to maintain the Marine Corps standards. Applicant acknowledged by signature.

040121:  Applicant notified of intended recommendation for discharge by reason of weight control failure. The Commanding Office is recommending that the Applicant receive a General (Under Honorable Conditions).

040122:  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.

040123:  Commanding Officer recommended discharge with a characterization of general (under honorable conditions) due to weight control failure. The factual basis for the recommendation was the Applicant’s failure to maintain Marine Corps weight standard per MCO P6100.12.

040220:  GCMCA, Commander, Marine Corps Air Bases Western Area, directed that the Applicant be discharged with a characterization of general (under honorable conditions) by reason of weight control failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

 Discussion

The Applicant was discharged on 20040301 with a characterization of general (under honorable conditions) 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. 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. On two occasions competent medical authority determined that the Applicant was not within the Marine Corps body composition standards and that the reason was not due to an underlying cause or disease. The Applicant’s service was marred by two retention warnings for his two assignments to the Body Composition Program (BCP). When the Applicant was officially removed from the BCP the second time, he signed an acknowledgement that stated that failure to meet the body composition standards for a third time, at any point in his career, would result in mandatory processing for administrative separation. Five months after completing his second assignment to the BCP, it was determined that the Applicant had failed to conform to the Marine Corps height and weight standards. 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 Applicant contends that the stress caused by a family situation “overwhelmed me and I started eating to compensate”. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.








The Applicant contends that he injured his right knee while attempting to follow the “set regimen”. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s failure to conform to the required height and weigh standard and his medical condition. The Applicant was initially counseled for performance and conduct concerning his assignment to the BCP in Jul 2001. Records provided by the Applicant state that the Applicant was treated in March and April 2002 for right knee tendonitis, with no other complaints of findings during the remainder of his service. Relief is not warranted.

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 6215, WEIGHT CONTROL FAILURE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 01 September 2001 until Present.

 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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