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USMC | DRB | 2006_Marine | MD0600722
Original file (MD0600722.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Sgt, USMC
Docket No. MD06-00722

Applicant’s Request
The application for discharge review was received on 20060502 . The Applicant requests the Discharge 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 designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070222 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB concluded that the discharge was improp er and inequitable . The Board’s vote was unanimous that the discharge shall change to HONORABLE by reason of SECRETARIAL AUTHORITY, authority: MARCORSEPMAN par 6214, Separation Code JFF1.









PART I - ISSUES AND DOCUMENTATION

Issues

         Propriety: Improper discharge process.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Excerpts from Marine Corps Physical Fitness Body Compositi on Program (2 pages)
Excerpts from Applicant’s service record (3 pages)
Letter from Applicant (2 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19970116 - 1997 0616       COG
         Active: USMC     19970 617 - 20010226       HON
Period of Service Under Review :
Date of Enlistment: 20010227              Date of Discharge: 20040405

Length of Service (years, months, days):

 Active: 0 3 0 1 0 9
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 2 1
Years Contracted: 4

Education Level: 12                                 AFQT: 33

Highest Rank: Sgt                                    MOS: 3112/1171

Final Enlisted Performance Evaluation Averages (number of marks): Fitness performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge, Good Conduct Medal, Sea Service Deployment Ribbon (3), Overseas Service Ribbon (2), National Defense Service Medal, Navy Unit Commendation .


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 :

0 10227 :  Reenlisted this date for a term of 4 years.
020225:  Counseling: Advised of deficiency (failure to conform to Marine Corps height/weight standards with a body fat of 20% and weight of 212lbs which is 3 lbs over maximum allowable. Advised being assigned to the Weight Control Program as of 020207), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020318:  Counseling: Advised of deficiencies in performance and conduct (concerning unsatisfactory progress on weight control program.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020522:  Physical Therapy Consult, Naval Hospital, Okinawa, A. F_, LT, MSC, USNR: Applicant reported for consult complaining of right knee pain for 6 months. Assessment: Osgood Schlatters disease, bilateral PFPS, mild right patella tendonitis. Recommend: Light duty, orthotics, and no high impact activities.
020719:  Physical Therapy, Naval Hospital, Okinawa: Applicant being seen for Osgood - Schlatters. He has not progressed with conservative physical therapy. Recommend: Limited duty.
020731:  Applicant placed on 8-month limited duty.

 021114:  Body Composition Program (BCP ) : Applicant has attained and maintained the Marine Corps’ body composition standards, and will officially be removed from the BCP and Remedial Physical Conditioning Program (RPCP) on the Unit Diary per reference.

030307:  Body Composition Program (BCP) evaluation: Semi-annual body composition found Applicant to weigh 239 pounds and has a 24 percent body fat. The Marine’s maximum weight is 208 pounds based on a height of 73 inches.

 030307:  Medical evaluation for Body Composition Program (BCP ) : Applicant body composition is not due to an underlying cause or associated disease. Applicant is fit for participation in a BCP and alternative RPCP.
030310:  Applicant assigned to an alternate Remedial Physical Conditioning Program as a result of physical restrictions/limitations imposed by the Medical Officer.

 030310:  Counseling: Advised of deficiencies in performance and conduct ( v iolation of Article 92, failure to obey an order or regulation. Specifically, on or about 1300, on 030224, knowingly and willfully disobeyed a lawful order to maintain proper grooming standards, and order issued by Master Sergeant.), necessary corrective actions explained, sources of assistance provided.
030314:  Body Composition Program (BCP ) : Applicant acknowledged not being eligible for the Physical Performance Evaluation and is being assigned to the BCP, as a 2nd assignment. Applicant directed to meet weight reduction goal of 5 pounds or a body fat reduction goal of 3 percent per month, and his weight goal is 30 pounds and body fat goal is 2 percent.
030314:  Counseling: Advised of deficiencies in performance and conduct ( r eassignment to the Marine Corps BCP), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030617:  Naval Hospital, Okinawa: Applicant presented with injured (dislocated) left shoulder during martial arts training. Shoulder reduction in ER completed.
030722:  Counseling: Advised of deficiencies in performance and conduct ( u nsatisfactory performance while assigned to the Marine Corps BCP due to insufficient effort you have not met your weight/body fat reduction goals as prescribed by the medical officer.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030724:  Body Composition Program (BCP) re evaluation: Applicant present body composition status is not due to an underlying cause or associated disease.

030812:  Medical Officer, Marine Wing Support Squadron 17 , recommended applicant be considered for administrative separation at the discretion of his command. Applicant h as Bilateral Quadriceps Tendonitis , which has not resolved despite decreased activity and being placed on abbreviated limited duty .

030908:  Counseling: Advised of deficiencies in performance and conduct ( c oncerning the following medical condition: Bilateral Quadriceps Tendonitis. This medical conditions prevents you from being fit for full duty in the Marine Corps), advised being processed for administrative discharge action.
03112 0:  Applicant notified of intended recommendation for discharge as honorable by reason of convenience of the government (condition not a disability), unsatisfactory performance, and weight control/body composition failure . Applicant informed the least favorable character of service possible was as general (under honorable conditions) .
0 31202 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

0 31203 :  Commanding Officer recommended Applicant’s discharge with an honorable by reason of convenience of the government (condition not a disability), unsatisfactory performance, and weight control/body composition failure . The factual basis for this recommendation was the Applicant’s diagnosis of Bilateral Quadriceps Tendonitis, failed to meet height and weight standards while on 2nd assignment to the Body Composition/Weight Control program .
0 40109 :  SJA review determined the case sufficient in law and fact and recommend ed a general discharge .
040127 :  GCMCA, Commander, 3d Force Service Support Group , directed the Applicant's discharge with a general (under honorable conditions) by reason of unsatisfactory performance .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040405 by reason unsatisfactory performance (A) with a service characterization of general (under honorable conditions ). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was im proper and in equitable (B and C).

Propriety – Improper discharge process: The Applicant requests a characterization of service change to Honorable contending that he was notified that he was being separated for “ medical not disability ” but was discharged for “ weight control reasons. ” By r egulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. The Applicant was discharged with a general (under honorable conditions) by reason of unsatisfactory performance . A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the A pplicant’s basis for separation . The Applicant was assigned to the Body Composition Program (BCP) for the second time on 20030314 and was counseled on 20030722 concerning unsatisfactory performance due to insufficient effort. The Applicant was properly notified of intent to recommend separat ion with an Honorable by reason of condition not a disability, unsatisfactory performance, and weight control failure on 20031120 . On 200 40127, the Commander, 3d Force Service Support Group, directed the Applicant’s discharge by reason of unsatisfactory performance with the least favorable characterization of service of general (under honorable cond itions) .

 The Commander, 3d Force Service Support Group , properly acted within his authority when he directed the Applicant’s discharge. However, wh il e reviewing the separation process , the B oard discovered that the Commander was provided information, which, in the Board’s determination, was misrepresented the facts and was therefore prejudicial to the Applicant. And so the Board unanimously voted to change the Applicant’s discharge to Honorable/Secretarial Authority. Relief granted.
While the Applicant is eligible for a personal appearance hearing, this change does not allow for any further upgrade consideration. 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 V, Para 502, Propriety .

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 II, Para 211, Regularity of Government Affairs .

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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