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USMC | DRB | 2005_Marine | MD0500755
Original file (MD0500755.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00755

Applicant’s Request
The application for discharge review was received on 20050328. 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 20050713. 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. “My discharge was inequitable because it was based solely on my weight issue. I was a good Marine, and my company never did much to help me lose weight.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’ s DD Form 214
Certificate from York Technical Institute for Student of the Term, dated October 2004
Certificate from York Technical Institute for Student of the Term, dated January 2005
Certificate from York Technical Institute for attendance, dated October 20, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010519 - 010715  COG

 Period of Service Under Review :
Date of Enlistment: 010716               Date of Discharge: 040325

 Length of Service (years, months, days):

         Active: 02 08 10
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 84
Highest Rank: LCpl                         MOS : 9812

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF *                         Conduct: NMF *

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDSM, LoA (4), RMB

 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)/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

 Chronological Listing of Significant Service Events :

020415:  Wellness appointment at Health Promotions Department, Branch Medical Clinic, Washington Navy Yard, DC: Applicant referred for diet education and weight management counseling. Command and Applicant concerned about “out of Marine Corps Standards” weight at this time.

020910:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of October 2002 due to weight control status.

021022:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of November 2002 due to weight control status.

021108:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of December 2002 due to weight control status.

030107:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of January 2003 due to weight control status.

030116:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of February 2003 due to weight control status.

030214:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of March 2003 due to not meeting height and weight standards.

030407:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of May 2003 due to weight control status.

030501:  Body Composition Program (BCP) Evaluation (from Commanding Officer, Drum and Bugle Corps to Medical Officer): Applicant was determined not to be within Marine Corps’ body composition standards. Applicant’s weight was 223 pounds and his body fat percentage was 28. Applicant received a Physical Fitness Test (PFT) score of 167, which is a 3rd class. Applicant was screened and does not meet the PFT performance/percent body fat criteria and is therefore not eligible for the physical performance evaluation. Applicant advised to loss 31 pounds or 10 percent body fat and maintain this loss for 6-month BCP assignment period.

030527:  Body Composition Program (BCP) Evaluation (Medical Officer endorsement): Applicant determined not to be within body composition standards and did not have an underlying cause or associated disease. Applicant found fit to participation in BCP and Remedial Physical Conditioning Program (RPCP).

030527:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal for the month of June 2003 due to not meeting height and weight standards.

030528:  Branch Medical Clinic, Washington Navy Yard, DC Body Composition Evaluation shows weight of 232 pounds and indicates Applicant saw a nutritionist at the Pentagon.

030602:  Body Composition Program (BCP) Evaluation (from Commanding Officer, Drum and Bugle Corps to Applicant): Applicant informed he is not eligible for the Physical Performance Evaluation and was being assigned to the unit's RPCP with mandatory participation beginning on 030528 and ending on 031128.

030624:  Body Composition Program (BCP) Evaluation (from Applicant to Commanding Officer, Drum and Bugle Corps): Applicant acknowledged that he was not in adherence with Marine Corps body composition standards, was not eligible for the Physical Performance Evaluation, was assigned to 6-month BCP, and was directed to meet specific weight reduction goals. Applicant signed understanding of responsibilities.

030710:  Page 11 entry: Applicant acknowledged that he was eligible but not recommended for promotion to Corporal until the month of December 2003 due to a Body Composition Program. Disciplinary and discharge warning issued.

030909:  Body Composition Program (BCP) Evaluation (from Commanding Officer, Drum and Bugle Corps to Medical Officer): BCP re-evaluation requested as Applicant has been participating in program for 4 months and has lost 0 pounds and added 3 percent body fat.

030913:  Body Composition Program (BCP) Evaluation (from Medical Officer to Commanding Officer, Drum and Bugle Corps): BCP re-evaluation by Medical Officer reaffirms Applicant's body composition status was not due to an underlying cause or associated disease. Applicant’s participation in BCP and RPCP should continue until program assignment expires.

031124:  Branch Medical Clinic, Washington Navy Yard, DC: Body Composition Evaluation shows weight of 230 pounds and indicates no underlying medical cause for excess weight.

031126:  Body Composition Program (BCP) Evaluation (from Commanding Officer, Marine Barracks to Applicant): Applicant's first 6-month assignment to BCP expires on 031128. Based on Applicant’s progress while assigned to BCP, it has been determined that he failed to meet the Marine Corps’ body composition standards and will receive a 6105 counseling entry and be processed for administrative separation.

040210:  Page 11 entry: Counseled concerning failure to make progress while assigned to Marine Corps weight control and body composition program. Corrective action explained and sources of assistance provided. Applicant then advised that it is the command's intent to process him for administrative separation based upon his failure to meet minimum weight control standards.

040224:  Applicant notified of intended recommendation for discharge with the least favorable characterization of general (under honorable conditions) by reason of unsatisfactory performance of duties. The basis for discharge is the Applicant's failure to meet standards for weight control and body fat composition.
040224:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040224:  Commanding Officer, Drum and Bugle Corps, Marine Barracks, Washington, DC recommended the Applicant's discharge with a characterization of general (under honorable conditions) by reason of unsatisfactory performance of duties. Commanding Officer's comments: "Based on Lance Corporal C_'s (Applicant's) failure to meet the Marine Corps Standards for weight control and body fat, it is requested that he be separated from the Marine Corps with a general discharge."

040224:  Commanding Officer, Marine Barracks, Washington, DC concurs with Commanding Officer, Drum and Bugle Corps' recommendation for the Applicant's discharge. Commanding Officer's comments: "Lance Corporal J_ M. C_ (Applicant) has been unable to conform to the basic standards we require of a Marine of his grade, billet, and MOS."

040311:  GCMCA (Commander, Marine Corps Base, Quantico, VA) advised the Commandant of the Marine Corps that the Applicant's discharge was directed with a characterization of general (under honorable conditions) by reason of unsatisfactory performance of duties.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040325 with a characterization of general (under honorable conditions) due to unsatisfactory performance of duties (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: The Applicant contends that his discharge was inequitable at it was based solely on his inability to meet Marine Corps height and weight standards. The Applicant is advised that Marine Corps separation policy provides for the administrative separation of members who are unqualified for further service by reason of unsatisfactory performance (A). Such unsatisfactory performance includes, but is not limited to, Marines who fail to conform to weight standards as a result of apathy or a lack of self-discipline. The record shows that, during the first four months of his assignment to his command's Body Composition Program (BCP), the Applicant not only lost no weight but added three percent to his body fat. The Applicant was counseled on nine occasions regarding non-recommendation for promotion due to his weight control status or his failure to comply with the requirements of his BCP and was formally advised on 20030501 to lose the requisite amount of weight in the prescribed time period. Upon completion of BCP on 20031128 (six-month assignment), the Applicant failed to meet the Marine Corps’ body composition standards. When a Marine fails to respond to counseling and does not successfully complete assignment to BCP, commanders may initiate separation proceedings. Relief on this basis is denied.

The Applicant further contends that, as an equity issue, his command never did much to help him lose weight. The record shows that the Applicant's command took the following action in attempting to bring the Applicant back within Marine Corps body composition standards:
o        referred him on 20020415 for diet education and weight management counseling;
o        screened and found him to not meet PFT performance/percent body fat criteria;
o        referred him on 20030501 to a medical officer for evaluation;
o        provided him six months from 20030528 to 20031128 to lose the requisite amount of weight; and
o        referred him on 20030913 to a medical officer for re-evaluation.
 Further, the Applicant, on 20030624, signed an understanding of both his responsibilities under the BCP and the specific weight reduction goals involved. The Board found that the Applicant's command took appropriate action and provided the Applicant with an appropriate length of time to correct his deficiency. Relief on this basis is denied.

 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 the Marine Corps. 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. The Board recognizes the student-of-the-term certificates (2) and attendance certificate submitted by the Applicant but, at this time, sufficient documentation has not been provided for the Board to consider. Relief on this basis is 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 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 P1900.16F), 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 503, Equity .
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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