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USMC | DRB | 2006_Marine | MD0601021
Original file (MD0601021.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD06-01021

Applicant’s Request
The application for discharge review was received on 20060728 . 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 20070517 . 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of unsatisfactory performance.







PART I - ISSUES AND DOCUMENTATION

Decisional Issues
Equity – Isolated incident

Equity – Quality of service

Equity – Post service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dtd June 22, 2006 (2 pgs)
 Applicant’s DD Form 214 (Member 4)
Five pages from the Applicant’s Service Record
Letter of Recommendation from Captain C. A. Isham, dtd June 13, 1997
Lett er of Work Performance from Gunnery Sergeant A_ C. G_, dtd June 16, 1997
Reference Letter from SSgt M _ T. B_ , USMC (not dated)
Letter of Commendation from Lt. M. D. M_, Wake Forest Police Department, dtd April       22, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19931001 - 19940704       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19940705              Date of Discharge: 19970626

Length of Service (years, months, days):

 Active: 0 2 11 22
         Inactive: None

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

Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 32

Highest Rank: LCpl                                   MOS: 2531

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 3 ( 9 )                        Conduct: 4 . 1 ( 9 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Sea Service Deployment Ribbon, Letter of Appreciation, Navy Achievement Medal, Meritorious Mast, Rifle Marksmanship Badge


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 :

931001:  DEP – In District waiver granted for enlistment with height 65 inches and 174 pounds.

940705:  DEP – Out District waiver granted for enlistment with height 65 inches and 180 pounds.
961031:  Weight Control Status Letter from Commanding Officer, Battery C, 1 st Battalion (Rein), 12 th Marines to Medical Officer, 1 st Battalion (Rein), 12 th Marines. The Applicant does not meet acceptable Marine Corps weight standards. The CO request ed that he be provided a medical evaluation per the reference. Applicant ’s weight is 184 pound with a body fat of 22.5 % . Maximum weight allowed by the reference: 165 lbs.

961031:  Weight Control Status Letter from Medical Officer, 1 st Battalion (Rein), 12 th Marines to Commanding Officer, Battery C, 1 st Battalion (Rein), 12 th Marines. Medical Officer comments: “Per the reference, LCpl A_ (Applicant’s) physical appearance is not due to a pathological disorder. A loss of 3 pounds per month and a total of 18 pounds within 6 months is recommended. He is fit for participation in a physical exercise program . ”

961031:  Assignment to Weight Control Program. Commanding Officer directs Applicant to meet the following weight reduction goal: 6 pounds per month. Applicant’s weight goal is 165 pounds to be attained no later than 3 months form this date. Failure to comply with reference (a) may result in separation from the naval service by reason of unsatisfactory performance per paragraph 6206.1. Applicant advised that assistance in meeting your weight standard is available through your chain of command and the Battalion Medical Officer. Applicant advised the while assigned to the Weight Control Program you will participate in the unit Remedial Physical Conditioning Program.

961031:  Applicant’s statement in response to assignment to Weight Control Program. Applicant understands that his unsatisfactory weight condition is not due to a pathological disorder. Applicant acknowledges that he has been assigned to the Weight Control Program and that failure to comply may result in separation from the naval service.
 .
 970319:  Counseling: Advised of deficiencies in performance and conduct (Failure to meet the prescribed weight loss goal as instructed by weight control program.), necessary corrective actions explained, sources of assistance provided. Applicant also advised that failure to meet Marine Corps weight standards within the established time provided by my assigned program will result in my separation from the military service.

970325:  Medical Officer reexamined Applicant and found the Applicant to be overweight. Not due to a pathological disorder.
970403:  Counseling: Advised of deficiencies in performance and conduct (Misconduct due to weight control failure.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970403:  Counseling: Advised of deficiencies in performance and conduct (Professional incompetence specifically in the areas of judgment , and self discipline. Resulting in SA Pro/Con marking of 4.6/3.9 .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970428:  Counseling: Advised of deficiencies in performance and conduct (Failure to meet prescribed weight loss goals as instructed by the weight control program.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
970428:  Commanding Officer, Battery C, 1 st Battalion (Rein), 12 th Marines letter to Commanding Officer, 1 st Battalion, 12 th Marines recommending that the Applicant be discharged by reason of failing to maintain Marine Corps height and weight standards with a characterization of honorable. Commanding Officer’s comments: “Lance Corporal A_ (Applicant) was assigned to the weight control program on 961031 with a starting weight of 184 lbs. Attempting his second time on the weight control program, he was allotted 90 days to lose 18 lbs. Due to numerous administrative errors, he was allotted additional time to lose the required weight. Since starting the program, Lance Corporal A_ has not only failed to make satisfactory progress, he has gained an additional 16 lbs. Even after another three months, he is now 35 lbs overweight. ”

970512 :  Applicant notified of intended recommendation for discharge as honorable by reason of unsatisfactory performance of duties . The factual basis for this recommendation was your failure of the Marine Corps weight control program . Applicant informed the least favorable character of service possible was as general (under honorable conditions) .

970512 :  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.

970512 :  Commanding Officer recommended Applicant’s discharge with an honorable discharge by reason of unsatisfactory performance of duties . The basis for this recommendation is the Applicant’s failure of the Marine Corps weight control program.

970529:  Counseling: Advised of deficiencies in performance and conduct (Administrative reduction to the pay grade of PFC on 970529. The reason for the administrative reduction was due to failure to meet Marine Corps weight standards.), necessary corrective actions explained, sources of assistance provided.
970611 :  SJA review determined the case sufficient in law and fact.
970617 :  GCMCA, Commanding General, Marine Corps Base Hawaii directed the Applicant's discharge with a general (under honorable conditions) b y reason of unsatisfactory performance due to weight control failure .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970626 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 proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).
Equity – Isolated incident : The Applicant contends that his discharge was inequitable because it was based on one isolated incident with no other adverse action.

Equity – Quality of service: The Applicant contends that his overall service was satisfactory
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 included two assignments to the Marine Corps Weight Control program. During the second assignment, the Applicant received 4 retention warnings for failure to meet the prescribed weight loss goals and professional incompetence, specifically, deficiencies in judgment and self discipline. In the Applicant’s case, he was separated per paragraph 6206.5.b. of the Marine Corps Separation and Retirement Manual, “UNSATISFACTORY PERFORMANCE OF DUTIES”, which specifies that a member may be separated for failure to conform to weight standards as a result of apathy or lack of self discipline. 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.

Equity – Post service : The Applicant states that he has worked for Wake Forest Police Department for seven years.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided letters of recommendation from Marines that he served with and from his current employer as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the substandard performance that resulted in the characterization of discharge. Therefore, no relief will be granted.

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 additional evidence related to this discharge. 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 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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