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USMC | DRB | 2008_Marine | MD0801462
Original file (MD0801462.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080630
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19981016 - 19990720                Active: 19990721-20021215 HON

Period of Service Under Review:
Date of Enlistment: 20021216     Period of E nlistment : Years Months      Date of Discharge: 20070713
Length of Service : 4 Y ea rs 06 M on ths 2 7 D a ys      Education Level:         Age at Enlistment:       AFQT: 55
MOS: 2311         Highest Rank:   Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
 Awards and Decorations ( per DD 214): Rifle Pistol

NJPs : 1
20030403 : Art icle 92 ( Failure to obey an order or regulation), a llowed underage Marines to drink alcohol.
 Article 128 (Assault)
Awarded : Susp ended:

6105 Counseling : 3
20030303: For assignment to Body Composition Program.
20031125: For one-time extension to Body Composition Program.
20041025: For assignment to Body Composition Program.
Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) :
         - Light duty chits and medical records.

Pertinent Regulation/Law

 A. Paragraph 6215, WEIGHT CONTROL FAILURE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 1 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 and 128 .


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

Applicant’s Issues

 1. Education opportunities.
2. Incorrect discharge reason and date on DD-214.
3. Record of service.

Decision

 Date: 20 08 0925             Location: Washington D.C .         R epresentation :

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

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

: ( ) . The Applicant contends he completed his obligated service which ended on 17 July 2007. Therefore, the date of discharge (13 July 2007) and reason for discharge (Weight Control Failure) listed on his DD-214 are incorrect. 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 record of evidence shows the Applicant was assigned to, and failed to successfully complete , the M arine Corps Body Composition Program. The Commanding General, 4 th MLG directed the Applicant’s discharge to be completed within 20 days of 30 May 2007 based on weight control failure with a “General (Under Honorable Conditions)” characterization of service. The Applicant was hospitalized between 4 Jun e 2007 and 7 Jun e 2007 for an appendectomy. The Applicant’s hospitalization delayed his discharge beyond the date directed by the Commanding General, but it did not change the basis or characterization directed. The Applicant submitted no evidence supporting his contention he served through his actual end of contract. The Board determined an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to an upgrade due to his record of service. The Applicant’s record during his second enlistment is marred by three retention warning for assignment to the Body Composition Program and failure to achieve weight loss goals, and an NJP for violation of the U niform C ode of M ilitary J ustice (UCMJ) , Articles 92 and 128. Violation of Article 92 and Article 128 is considered a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge or even a summary court-martial.

For the edification of the Applicant, a “General (Under Honorable Conditions)” characterization of service is appropriate if the Marine’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the Marine ’s military record. These 2 violations of the UCMJ outweighed the positive aspects of the Applicant’s military record which allowed for the discharge to be characterized as a “General (Under Honorable Conditions). The Board determined the Applicant’s discharge was appropriate considering his record of service and an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

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 or is referred to a court-martial fo r 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 other medical related reasons. ” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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