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USMC | DRB | 2005_Marine | MD0500756
Original file (MD0500756.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00756

Applicant’s Request
The application for discharge review was received on 20050331. 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 but that the narrative reason shall change to unsatisfactory performance, as processed. The discharge shall read: GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN 6206, Separation Code HHJ4.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

Applicant’s issues, as stated on the application:

1. “I AM REQUESTING THAT MY DISCHARGE BE UPGRADED TO A HONORABLE FOR THE FOLLOWING REASONS. I HAVE RECEIVED 4 PAGE 11’S IN MY MILITARY CAREER. (1) 1ST TERM ASSIGN BCP, (2) NON-RATE FOR BCP 1ST TERM, (3) UNSAT PROGRESS BCP 1ST TERM, AND (4) UNSAT PROGRESS BCP 2ND TERM. THERE IS NO PAGE 11 ENTRY FOR 2ND ASSIGNMENT TO BCP. I WAS ASSIGNED TO BUT IT WAS 5 MONTHS AFTER MAKING WEIGHT AND BEING REMOVED FROM 1ST TERM BCP. I FAILED TO MAKE STANDARDS SECOND TERM ON BCP. DUE TO MY RECOMMENDATIONS BY OFFICERS AND SNCO. MY CLEAN RECORD OTHER THAN WEIGHT CONTROL. MY INJURIES THAT KEPT ME FROM NORMAL PT AND WEIGHT REGIME. AND MY SERVICE TIME 3YR 3MONTHS 9 DAYS. I HAD ONLY 8 MONTHS LEFT. MY AVERAGE PRO AND CON MARKS WERE 4.3 AND 4.1. CON ONLY REFLECTED SO LOW DUE TO WEIGHT CONTROL REQUIRED 3.9 CONDUCT MARK. THERE WAS NO COMPANY REMEDIAL PROGRAM EITHER OF MY ASSIGNMENTS TO BCP. AND IN THE BCP ORDER IT LEAVES ROOM FOR COMMANDING OFFICER DECRETION BUT GIVES GUIDELINES AS TO PRO AND CONS WHICH I WAS CLEARLY IN STANDARDS FOR A HONORABLE DISCHARGE.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
One hundred and thirteen pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 010227                        Date of Discharge: 040604

 Length of Service (years, months, days):

         Active: 03 03 09
         Inactive: None
Age at Entry: 17 (Parental Consent)     Years Contracted: 4

 Education Level: 12                                 AFQT: 70

 Highest Rank: LCpl                                  MOS: 3043

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (6)                                Conduct: 4.1 (6)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, RMB

 Days of Unauthorized Absence: None

 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 :

020923:  Applicant subject of Medical Board at Naval Hospital Camp Lejeune, NC, with diagnosis of bilateral shoulder/hip bursitis, recommending six months of limited duty.

021001:  Naval Hospital Camp Lejeune, NC, Limited Duty Board Proceedings. Limited duty Board convened on the Applicant. Limitations of duty are no hump, run, pull-ups, exercise at own pace as instructed by physical therapy. Must attend all therapy appointments.
021105:  Commanding Officer request Body Composition Program (BCP) Evaluation by Medical Officer. Applicant was determined not to be within the Corps’ body composition standards. Applicant’s weight was 150 pounds and a body fat percentage of 36. Applicant received a physical fitness test (PFT) score of 198, which is a 2nd 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 lose 13 pounds or 10 percent body fat and that this reduced weight/body fat must be maintained within the 6-month BCP assignment period. Notation by Medical Officer, LT N_ A_, USN(on the evaluation form): “Agree with above weight loss requirements.”
021105:  Medical Officer Evaluation. 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 a BCP and Remedial Physical Conditioning Program (RPCP). Notation by Medical Offier, LT N_ E_, USN: “Pt has chronic bursitis in both hips and was told by Orthopaedic surgeon and physical therapist to _____ do physical therapy _____. No Return to Readiness yet Pt can do stationary bike and must diet for weight loss to occur. Has dietician appointment 021121.”
021105:  Applicant notified that she is assigned to a 6 month BCP as a 1 st assignment. Weight reduction goal of 2.1 pounds per or a body fat reduction goal of 1.6 percent per month. Goal is to lose 13 pounds and 10 percent body fat. Mandatory participation in the BCP and the Remedial Physical Conditioning Program (RPCP) begins on 5 Nov 02 and ends on 5 May 03. Applicant assigned to the alternate RPCP as a result of physical restrictions imposed by Medical Officer.

021105:  Applicant signed acknowledgment of assignment to Body Composition Program as a 1 st assignment.
021105:  Counseled for deficiencies in performance and conduct. [Your assignment to the Marine Corps Body Composition Program. Specifically, you failed to maintain your body standards as required by MCO P6100.Your actions are unsatisfactory and not in accordance with the high state of readiness required by the Marine Corps.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
021108:  Applicant informed eligible but not recommended for promotion to Cpl due to assignment to BCP.

030210:  Naval Hospital Camp Lejeune, NC, Orthopedic Clinic Evaluation. Final diagnosis: (1) Bilateral shoulder bursitis, DNEPTE. (2) Bilateral hip bursitis, DNEPTE. The patient is making progress with recurrent conservative treatment plan and is progressing toward a time where she may return to full duty. She is however unable to do so at the present time and will need ongoing limited duty period to complete her rehabilitation. Recommend extension of limited duty board for 8 months with the plan that in approximately 2-3 additional months the patient will likely be able to return to full duty.

030219:  Statement of Patient Concerning the Findings of a Medical Board. Applicant notified that it is the recommendation of the Medical Board of 10 February 2003 that I be returned to limited duty for 8 months to expire 10 October 2003 with the limitations noted below. Limitations are no PFT, digging, lifting weights over 10 lbs, PT at own pace, no hump, run, pull ups.

030319:  Body Composition Program (BCP) Re-Evaluation: Applicant has been participating in program for 4 months. Applicant has gained 2 pounds and added 1 percent body fat, since being placed on the BCP on 021105.

030319:  Medical Officer Evaluation: Applicant determined not to be within body composition standards and did not have an underlying cause or associated disease. Applicant participation in the BCP and Remedial Physical Conditioning Program should continue until program assignment expires. Notation: “Patient has not lost any weight. Following recommendations has cut down starches. Undergoing physical therapy for chronic bursitis - is on limited duty for 8 months cannot do weight bearing exercises.”

030319:  Counseled for deficiencies in performance and conduct. [Failure to make satisfactory progress while assigned to the Marine Corps Body Composition Program. Specifically, your have failed to meet your assigned weight/body fat reduction goals.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030331:  Recommendation of medical board report is approved. Applicant is to be
retained in a limited duty status. The period of limited duty will not exceed 8 months from the date of the Medical Board. Applicant to be reevaluated during Aug 2003.

030507:  Command Officer notifies the Applicant that she has attained and maintained the Marine Corps’ body composition standards and will be officially remove from BCP and the RPCP.

031022:  Commanding Officer request Body Composition Program (BCP) Evaluation by Medical Officer. Applicant determined not to be within body composition standards during the semi-annual body composition evaluation. Applicant weighs 147 pounds and has a 33 percent body fat. The Applicant’s maximum weight is 141 pounds based on a height of 63 inches. 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 lose 6 pounds or 7 percent body fat and that this reduced weight/body fat percentage must be maintained for 6-month BCP assignment period. Request a medical evaluation be conducted to determine the Applicant’s medical status for BCP and Remedial Physical Conditioning Program (RPCP) participation.

031022:  Medical Officer Evaluation. The Applicant is not within the body composition standards and it is not due to an underlying cause or associated disease. Applicant is fit for participation in a BCP and Remedial Physical Conditioning Program (RPCP).

031022:  Applicant notified that she is assigned to a 6 month BCP as a 2nd assignment. Weight reduction goal of 1.0 pound per or a body fat reduction goal of 1.16 percent per month. Goal is to lose 10 pounds and 7 percent body fat. Mandatory participation in the BCP and the Unit’s Physical Conditioning Program (RPCP) begins on 22 Oct 03 and ends on 22 Apr 04.

031022:  Applicant signed acknowledgment of assignment to Body Composition Program as a 2 nd assignment. Weight reduction goal is 1 pound or a body fat reduction goal of 1.16 percent. The weight goal is 6 pounds and the body fat goal is 7 percent. Applicant to participate in the Unit RPCP.

031022:  Counseled for deficiencies in performance and conduct. [Concerning your reassignment to the Marine Corps Body Composition Program. Specifically, you failed to maintain your body standards as required by MCO P6100.12 for a second time. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the Marine Corps. You are advised that this subsequent assignment is for a six-month priod.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.




040316:  Commanding Officer request Body Composition Program (BCP) Evaluation by Medical Officer. Applicant has been participating in the BCP and Remedial Physical Conditioning Program for 4 months. Applicant has gained 12 pounds and added 4 percent body fat, since being placed on the BCP on 031022.

040316:  Medical Officer Evaluation. Applicant has been reevaluated and determined not to be within body composition standards and did not have an underlying cause or associated disease. Applicant participation in the BCP and Remedial Physical Conditioning Program should continue until program assignment expires.

040316:  Counseled for deficiencies in performance and conduct. [Your unsatisfactory performance while assigned to the Marine Corps Body Composition Program. Specifically, due to insufficient effort, you have failed to meet the assigned weight/body fat reduction goals.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040506:  Applicant notified of intended recommendation for discharge by reason of unsatisfactory performance of duties. The least favorable characterization of service that you may receive is General under honorable conditions. The CO recommends that the Applicant receive a General under honorable conditions discharge.

040506:  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 and to submit written statements

040506:  Commanding Officer recommended discharge general (under honorable conditions) due to unsatisfactory performance of duties. The factual basis for the recommendation was failure to conform to Marine Corps weight standards set forth by the Body Composition Program.

040527:  GCMCA, Commanding General, 2d Marine Division, II Marine Expeditionary Force, directed the Applicant's discharge 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 20040604 with a 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 and characterization of discharge were proper and equitable but the reason for separation was was inequitable (C and D).

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that unsatisfactory performance was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore, the narrative reason for separation, as stated on the DD214, is incorrect and should be changed from weight control failure to unsatisfactory performance.

On 20021105 the Applicant was assigned to Marine Corps Body Composition Program (BCP) and received a retention warning advising her “that failure to take corrective action and reach the Marine Corps body composition standards will result in administrative separation from the Marine Corps for either weight control or unsatisfactory performance per paragraphs 6206 and 6215 of MCO P1900.16E”. On 20030319 the Applicant received a second retention warning due to her failure to make satisfactory progress while assigned to the BCP and was again advised as to the possibility of administrative separation per paragraphs 6206 and 6215 of MCO P1900.16F. On 20031022 the Applicant received a third retention warning that specified her failure to maintain body composition standards for a second time with a corresponding second assignment to the BCP. This retention warning included; the possibility of administrative separation per paragraphs 6206 and 6215 of MCO P1900.16F; stated that MCO P6100.12 precludes assignment to the Marine Corps BCP for a third time in a Marine’s career; stated that any subsequent failure to meet the prescribed weight/body fat standards will result in administrative separation. On 20040316, the Applicant received a fourth retention warning as a result of her unsatisfactory performance while assigned to the BCP (2 nd assignment) specifically due to insufficient effort. The Applicant was properly notified by the Commanding Officer that she was being recommended for discharge due to unsatisfactory performance of duties per paragraph 6206.5b of MCO P1900.16F. The Applicant acknowledged the notification. Subsequently, the Commanding Officer provided the GCMCA with a recommendation for the Applicant’s discharge due to unsatisfactory performance of duties pursuant to the provisions of paragraph 6206.5b of MCO P1900.16F. The GCMCA directed that the Applicant be discharged pursuant to the provisions of paragraph 6215 of MCO P190019.F. According to paragraph 6215, “processing of Marines who fail to make a reasonable effort will be under paragraph 6206 (unsatisfactory performance of duties), not this paragraph.”

The Applicant states that her injuries “kept me from normal PT and weight regime” and that “there was no Company remedial program either of my assignments to BCP”. In the Applicant’s case, the Board could discern no impropriety and therefore considered the Applicant’s discharge proper. On 20021105 competent medical authority found the Applicant fit to participate in a BCP (1 st assignment) and Remedial Physical Conditioning Program (RPCP). The Applicant was in a limited duty status and was assigned to the Alternate RPCP as a result of physical restrictions imposed by the Medical Officer. On 20030331, the Applicant was retained in a limited duty status, not to exceed 8 months from the date of the Medical Board. On 20031022, competent medical authority found that the Applicant was fit for participation in a BCP (2nd assignment) and Remedial Physical Conditioning Program. Per MCO P1600.16F, “Marines on light or temporary limited duty (TLD) must maintain proper military appearance and weight control per current edition of MCO 6100.10B. The mere fact that a Marine is on light or TLD does not remove the Marine’s responsibility to comply with Marine Corps standards. If a Marine on light or TLD fails to maintain military appearance and weight control standards, that Marine may be subject to administrative action (to include separation).” 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 documentation to support any claims of post-service accomplishments or any other evidence related to her 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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