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USMC | DRB | 2009_Marine | MD0900288
Original file (MD0900288.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081124
Characterization of Service Received:
Narrative Reason for Discharge: WEIGHT CONTROL FAILURE
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19950317 - 19950529     Active:            19950530 - 19981008
                                             19981009 - 20010503
                                             20010504 - 20040625

Period of Service Under Review:
 Date of Enlistment: 20040626     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070628      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 72
MOS: 3531/3536/3537/0411
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2) Pistol (4) (2) (3) KDSM (2) (2) MM (3) CoA (2) CoC LoA

Periods of UA / CONF : CC:

NJP: SCM:

SPCM:
- 20070606 : Article 90 (Willfully disobey a Superior Commissioned Officer -failure to recruit)
 Sentence:

Retention Warning Counseling:

- 20051217 :       For failure to meet Marine Corps weight and body fat standards of MCO P6100.12. I understand that I am being assigned to a six (6) month BCP on a first assignment. I understand that I am being directed to meet a weight reduction goal of 1 p ound or a body fat reduction of 2 percent per month and my weigh goal is 203 pounds and a body fat goal of 18 percent. Additionally I am advised that MCO P6100.12 precludes extensions being granted for second assignments and also precludes assignment to the BCP for a third time in a Marine’s career.
- 20060517 :      Concerning extension to the Marine Corps BCP. You have made reasonable progress but have failed to reach your required body composition while on your first assignment to this Program. Therefore, you have been granted a one-time extension of 6 months to meet the body composition standards set forth in MCO P6100.12.

- 20070212 :      For failure to comply with Body Composition Program (BCP).



Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM
950530 UNTIL 040625”
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 :

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 90 ( Willfully disobeyed a Superior Commissioned Officer-failure to recruit) .



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

Applicant’s Issues

 1. Discharge unjust and inequitable due to mitigating circumstances.

Decision

 Date: 20 0 9 0305            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

 : ( ) . The Applicant contends after 12 plus years of decorated and faithful service, he believes his discharge , due to weight control , does not rate a “General (Under Honorable Conditions)” and his misconduct was due to mitigating circumstances (family issues). 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 three retention warnings for failing to meet the Marine Corps weight standards while assigned to the Body Composition Program (BCP) and a S PCM for violation of the Uni form Code of Military Justice (UCMJ): Article 90 ( Willfully disobey ed a Superior Commissioned Officer-failure to recruit). This violation is considered a serious offense, which could have been punishable by a punitive discharge and co nfinement. The Applicant was only reduced in rank to Sergeant. Shortly after the Applicant ’s case was adjudicated, t he command decided to administrative ly discharge him by reason of weight control failure .

The Applicant ’ s weight has always been an issue since the start of hi s Marine Corps career. At MEPS, his height and weight were 73 inches and 212 pounds and t he Applicant required a weight waiver to enter the service and process to boot camp. For most of the Applicant ’ s military career, his weight ha d remained within a range between 207-214 pounds. The maximum allowable weight for males at a height of 7 3 inches is 208 pounds. From May 1998 to July 2005, the Applicant ’ s Fitness Reports stated his height increased by an inch to 74 inches, which allowed the Applicant to carry additional pounds. The allowable maximum weight for males at a height of 74 inches is 214 pounds. During this eight year period, the Applicant ’ s weight stayed in the 213-214 pound range. Onl y once did it change and that was while he was a student at Recruiter’s School, when h is height was documented at 73 inches and his weight was 207 pounds.

In the fall of 2005, the Applicant finished his semi-annual physical fitness test (PFT) with a score of 145, which rated him t hird class in terms of fitness. The Applicant was evaluated in December 2005 and measured 73 inches in height and 214 pounds with 26 % body fat. He was placed o n the BCP and was counseled to lose 6 pounds and 8 % body fat in the following six months . In January and April 2006, the Applicant was examined by a medical officer who stated the Applicant ’ s weight gain was not due to an underlying cause or associated disease. It was noted during the April 2006 examination the Applicant failed to lose any weight and body fat after four months on the program . In June 2006, the Applicant was given a 6 mont h extension to lose the excess weight and body fat to comply with Marine Corps standards. In December 2006, the Applicant again failed to lose the require d excess weight and body fat and it was noted by the Commanding Officer the Applicant actually gained an additional 46 po unds and 8 % body fat ; making his height , weight and body fat measurements 73 inches , 260 pounds and 34%, respectively. Again, the Applicant was examined by a medical officer with the same results as before. It wa s apparent the Applicant gave up on both attempting to lose weight and the Marine Corps, especially in a job such as recruiting, where perception and appearance are critical to attract the finest young men and women of for the Corps.

For the edification of the Applicant, a “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. In most cases, a discharge by reason of “Weight Control Failure” warrants an “Honorable” discharge when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel.


It is noted that the Applicant had completed three “Honorable” enlistments in the Marine Corps. During the Applicant ’ s last enlistment, which led to his involuntary discharge, he was the subject of a S PCM for failure to recruit. Although the Applicant claims his misconduct was the direct result of family issues, there is no documentation to substantiate the need for hi m to willfully disobey a Superior Commissioned Officer ’s order. Although the command made an attempt to guide the Applicant to family services, he makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need. Based on the circumstances, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement on the DD Form 293, he only provided service documents on his behalf. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided 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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