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USMC | DRB | 2007_Marine | MD0700790

Original file (MD0700790.rtf) Auto-classification: Denied

ex-SGT, USMC
MD07-00790

Current Discharge and Applicant’s Request

Application Received: 20070522 Characterization Received:

Narrative Reason: WEIGHT CONTROL FAILURE Authority: MARCORSEPMAN 6215

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Medical condition caused weight control issues.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall WEIGHT CONTROL FAILURE.

Date : 20 0712 12          Location: Washington D.C.         Representation :

Discussion

Issue 1 (Equity): The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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 . The NDRB review ed all of the available records , supporting documents, facts, e lements of d ischarge , evidence submitted by the Applicant , and circumstances unique to this case . A particular circumstance of interest was the medical aspect of weight gain when taking prednisone and the favorable comments and recommendations of his chain of command . The NDRB noted that weight control incidents as the only blemish on the Applicant’s record and also noted the favorable fitness reports and above average proficiency and conduct marks throughout the enlistment period. The NDRB concluded that there was an i nequity in the Applicant’s discharge action, is convinced that this was prejudicial to the Applicant, and therefore an i nequity in the characterization did occur.

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, Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19970828 - 19971202                 Active: 19971203 – 20011001      HON
Period of Service Under Review:
Date of Enlistment: 20011002      Years Contracted : 4 ; Extension: 2 Mths    Date of Discharge: 20050812
Length of Service : 03 Yrs 10 Mths 11 d ays         Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 24     AFQT: 48          MOS: 0621 Highest Rank: SGT
Proficiency/Conduct marks (# of occasions):      4.6 ( ) / 4.3 ( )     Fitness reports :
Awards and Decorations ( per DD 214): CAR, GCM x 2 , GWOTSM, NATO, NDSM, SSDR x 2, HSM, JMUA, NAVY MUC, NUM, KOSOVO CAMPAIGN MEDAL, CERT COMM x 3, Rifle , Pistol MM.

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

19970808:        A pplicant weighs 221 pounds at MEPS physical. Max weight for 70 inches is 192.

20021017:        Assigned to the Body Composition P rogram for the second time.

20021022 :        MARCORSEPMAN 6105 counseling for reassignment to the Body Composition Program for a period of 6 months. Failed to maintain standards for a second time. Discharge warning issued.

20030305 :        MARCORSEPMAN 6105 counseling for unsatisfactory performance while assigned to the Body Composition Program. Have not met weight or body fat reduction goals. Discharge warning issued.

20030417:        Applicant met weight standard and removed from the Body Composition Program. [Extracted from CO’s administrative separation letter 20050127]

20041029 :        MARCORSEPMAN 6105 counseling for being processed for administrative separation for unsatisfactory performance while assigned to the Body Composition Program twice and failing a PFT.

20050127:        Applicant weighs 257 pounds and body fat is at 26%. [Extracted from CO’s administrative separation letter 20050127] .

Discharge Process

Date Notified:   20050315
Basis for Discharge:

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                  UNDATED
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)                         (20050519)
         Administrative Board

Administrative Board Date :       20050519
Findings, by preponderance of the evidence:     BY
                  BY SEPARATION WARRANTED.
Recommendation on Separation: BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 20050315 )
SJA review (date):       ( 20050802 )
Separation Authority (date):     COMMANDER, 2D MARINE AIRCRAFT WING ( 20050802 )
Basis for discharge directed:
Characterization directed:
Date Applicant Discharged:       20050812

Types of 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. 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, 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, provi ded 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 grante d 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.

Employmen t / 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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USMC | DRB | 2007_Marine | MD0700790

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