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USMC | DRB | 2008_Marine | MD0801642
Original file (MD0801642.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080728
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)     19990417 - 19990427     Active:            19990428 - 200211 2 4
                                    20021125 - 20061115

Period of Service Under Review:
 Date of Enlistment: 20061116     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070818      H ighest Rank:
Length of Service : Y ea rs M on ths 03 D a ys
Education Level:        AFQT: 33
MOS: 0431
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (3) (2) AM-S/F (3) IRM (3) PUC LoA

Periods of UA / CONF : NJP: S CM: S PCM: CC:

Retention Warning Counseling:

- 20070710 :       For violation of Article 92. Failure to properly maintain your body composition as required by MCO P6100.12. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC.

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214:

          Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized should contain “ NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (3), MARINE CORPS GOOD CONDUCT MEDAL (2), AIR MEDAL - STRIKE/FLIGHT (3), IRAQ CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3), GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, PRESIDENTIAL UNIT CITATION-NAVY, NAVY MERITORIOUS UNIT COMMENDATION, LETTER OF APPRECIATION, RIFLE SHARPSHOOTER, PISTOL MARKSMANSHIP ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / 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 Congress member :

Other Documentation :
                  - DD Form 149

Pertinent Regulation/Law

 A. Paragraph 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual,
(MCO P1900.16F), 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 .




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

Applicant’s Issues

 1. Employment opportunities.
2. Discharge was for medical reasons.

Decision


 Date: 20 0 9 0107            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall UNSATISFACTORY PERFORMANCE .
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 is entitled to a change in the narrative reason for discharge because his discharge was for a medical issue. 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 Applicant’s record of service was marred by a retention warning for not maintaining body composition in accordance with Marine Corps regulations. The record of evidence shows the Applicant was assigned to the Marine Corps Body Composition Program (BCP) two times for failure to meet height/weight and body composition standards during previous enlistments. On 14 May 2007 the Applicant was weighed in for the semi-annual Physical Fitness Test and again exceeded body composition standards. Regulations preclude assignment to the BCP a third time and require discharge processing any time a Marine exceeds height/weight and body composition standards after two assignments to the BCP. The separation processing can be based on one of two paragraphs in the Marine Corps Separations Manual : Paragraph 6215 which is used when the sole reason for separation is failure to meet weight and body fat standards, and the Marine's performance and conduct otherwise conform with established standards ; or paragraph 6206 which is used when a Marine is separated for failure to conform to weight standards as a result of apathy or a lack of self discipline.
The Applicant’s command, based on the opinion of a medical officer that the Applicant’s weight was not due to an underlying medical condition, determined the Applicant’s failure to conform to weight standards was the result of apathy or lack of self discipline. Therefore, they elected to process the Applicant’s discharge under paragraph 6206 of the Marine Corps Separations Manual. The record of evidence, including evidence submitted by the Applicant, does not show the command acted inequitably or capriciously. The NDRB determined the awarded discharge was appropriate and an upgrade founded upon the Applicant’s claim of a medical issue 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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