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USMC | DRB | 2006_Marine | MD0601217
Original file (MD0601217.rtf) Auto-classification: Denied
ex-, USMC
MD06-01217
Current Discharge and Applicant’s Request

 Application Received:                               20 0 60908
         Characterization of Service:             
Narrative Reason:        WEIGHT CONTROL FAILURE: INVOLUNTARY DISCHARGE DIRECTED BY ESTABLISHED DIRECTIVE (WITH BOARD ENTITLEMENT) WHEN A MEMBER FAILS TO MEET ESTABLISHED WEIGHT CONTROL STANDARDS AND HAS PASSED VESTED SERVICE REQUIREMENTS
         Discharge Authority :                       MARCORSEPMAN 6308.1c
         Duty Assignment/ Command at Discharge:    cmc (mmsB20) quantico, va

Applicant’s Request:
          Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
         Representation:                                    
        
Applicant’s i ssues (as summarized by NDRB) :
1. Characterization not warranted by service record

Decision

 By a vote of the Characterization shall .     
By a vote of the Basis for Discharge shall WEIGHT CONTROL FAILURE .

 Date of Decision:        20 070816                            Location of Board: Washington D.C.

Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:        

Issue 1 ( ). An honorable characterization is appropriate when the quality of the member’s service has met the standards of accepted conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. A general discharge is warranted when a member’s service has been honest and faithful but 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 was marred by a retention warning, assignment to the weight control program, failure to make satisfactory progress on that program, and a nonjudicial punishment proceeding for violation of Article 107 of the UCMJ. Article 107 is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial. The se negative aspects of the Applicant’s conduct and performance, especially in light of his status as a noncommissioned officer, are significant. The Board found no inequity in the determination that the Applicant’s negative aspects outweighed the positive aspects of his military record for the period of service under review.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.


Summary of Service

Prior Service:
 Inactive: USMCR (DEP) 19840910 - 19850723       Active: 19850724 - 19890103
                                                                        USMC 19890104 - 19920202 HONORABLE

Period of Service Under Review:
 Date of Enlistment: 19920203      Years Contracted :        Date of Discharge: 19930708
Length of Service : 1 Yrs 5 Mths 6 D ys (does not exclude lost time) Time Lost During This Period:
        
Education Level:         Age at Enlistment:       AFQT: 64          MOS: 7 2 12         Highest Rank:

Fitness reports available for review?            Awards and Decorations (as listed on the DD Form 214): RIFLE EXPERT BADGE (6 TH AWARD), PISTOL EXPERT BADGE (3 RD AWARD), SEA SERVICE DEPLOYMENT RIBBON (W/4*), GOOD CONDUCT MEDAL (W/1*), MERITORIOUS UNIT COMMENDATION (W/2*), NATIONAL DEFENSE SERVICE MEDAL, (3) MERITORIOUS MASTS, SOUTHWEST ASIA SERVICE MEDAL (W/3*), NAVY UNIT COMMENDATION (W/1*), LETTER OF APPRECIATION, COMBAT ACTION RIBBON

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19920203:        Applicant reenlisted for 4 years.

 19920715:        MARCORSEPMAN para 6105 c ounseling for failure to m e et prescribed weight standards, unsatisfactory physical fitness and military appearance, and assignment to weight control program .

19920716         Appropriately Credentialed Health Care Provider determined that Applicant’s physical appearance not due to a pathological disorder. Proposed program of 5 pounds recommended loss per month for 6 months reasonable .
19920716:        Applicant directed to meet reduction goal of 5 pounds per month with weight goal of 192 pounds to be attained no later than 6 months.
19920716:        Applicant assigned to Battalion Physical Training Platoon due to not meeting Marine Corps height/weight standards.
19930107 :        NJP for violation(s) of UCMJ, Article 107: Filled out a false PFT roster.
         Award: FOP $ 329 .00 for 1 month, Rest for 14 days. Rest suspended for 3 months.
        
19930114 :        MARCORSEPMAN para 6105 counseling for l ack of discipline, motivation, and initiative .

19930114:        Appropriately Credentialed Health Care Provider reevaluated applicant and found pr esent weight to be 221 pounds, present condition is overweight. The proximate cause of this overweight condition is not due to pathological disorder.

19930115:        Reevaluation for weight control/P A P: A pplicant not in compliance with orders and removed from Weight Control /Military Appearance program with determination to initiate administrative discharge proceedings.

Elements of Discharge: [INVOLUNTARY]

 Date Notified:                                       19930216
Basis for Discharge:                                WEIGHT CONTROL FAILURE
Least Favorable Characterization:                         
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                 19930212
Rights Elected at Notification:
          Consult with Counsel                      
         Obtain Copies of Documents                
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 19930217 )
SJA review (date):                                  ( 19930309 )
 Separation Authority (date):     COMMANDER, 1 ST MARINE AIRCRAFT WING ( 19930312 )
          Basis for discharge directed:            
         Characterization directed:                        
Date Applicant Discharged:                         19930708

Additional Documents Submitted by Applicant and Considered By Board

 Related to Military Service:     Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      

Pertinent Regulation/Law

 A. ALMAR 57/93 [CMC 161805ZFEB93] revised enlisted separation policy for weight control failure. It cancelled paragraph 6206.1 of the Marine Corps Separation and Retirement Manual.

 B. 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 V, Para 502, Propriety and Para 503, Equity .


ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 Naval service. 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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