ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090306
Characterization of Service Received:
Narrative Reason for Discharge:  DISABILITY, SEVERANCE PAY
Authority for Discharge:  MARCORSEPMAN 8401

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

                             Summary of Service

Prior Service:
Inactive:   USMCR (DEP)      20030602 - 20040112   Active:

Period of Service Under Review:
Date of Enlistment:  20040113     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20080531 Highest Rank:
Length of Service:    Year(s)    Month(s)  19  Day(s)
Education Level:       AFQT:  76
MOS:  7212
Proficiency/Conduct Marks (# of occasions):   (10) /  (10)   Fitness
Reports:
Awards and Decorations (per DD 214):    Rifle

Periods of UA/CONF:
NJP:          SCM:            SPCM:           CC:


Retention Warning Counseling:


    - 20040916:  For assignment to body composition program.


    - 20050120:  For being over weight.


    - 20050426:  For assignment to body composition program.


    - 20050708:  For unsatisfactory performance while assigned to the body
             composition program.


    - 20051026:  For unsatisfactory performance while assigned to the body
             composition program.

    - 20080220:  For failure to meet height and weight standards.

                    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 Representation:
      From Congress member:
                    Other Documentation:

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

                             Applicant’s Issues

1. Applicant claims that he was not counseled on his proficiency/conduct
(Pro/Con) marks below 4.0.

                                  Decision

Date:  20090706        Location: Washington D.C.    Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  DISABILITY, SEVERANCE PAY.

                                 Discussion

The NDRB, under its responsibility to examine the propriety and equity of
an Applicant’s discharge, is authorized to change the character of service
and the reason for discharge if such change is warranted.  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 reflects six NAMVC 118(11) (page 11) warnings
for unsatisfactory performance while assigned to the body composition
program and no misconduct resulting in NJP or court-martial.

:  (Decisional) ()  .  The Applicant contends he was not counseled when his
Pro/Con marks were below 4.0.  Following a service record review, the Board
noted that the Applicant was counseled on 31 January 2005 for Pro/Con marks
of 4.3 and 3.9 respectively, and on 13 February 2006 for Pro/Con marks
below 4.0.  In addition to the six adverse counseling entries previously
discussed, the Applicant was not recommended for promotion on eleven
occasions for weight control failure, failing to meet height/weight
standards, or related issues stemming from unsatisfactory performance in
meeting body composition program standards.  For the Applicant’s
information, failure to make satisfactory progress while assigned to the
weight control or military appearance program is one factor used in
determining conduct marks.  The NDRB determined that the Applicant’s
contention is not supported by the record of evidence.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service,  record entries, and discharge process, the
Board found   Therefore, the awarded characterization of service shall
and the narrative reason for separation shall remain DISABILITY, SEVERANCE
PAY.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of  discharge.  The Applicant is
directed to the Addendum, specifically the paragraphs titled Additional
Reviews, Automatic Upgrades, and Post-Service Conduct.

                          Pertinent Regulation/Law

A.  Paragraph 8401, DISABILITY DISCHARGE WITH SEVERANCE PAY, 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.


                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former
members are eligible for a personal appearance hearing, provided the
application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the
American Legion and the Association of Service Disable Veterans that are
willing to provide guidance to former service members in their efforts to
obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines
eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.
Additionally, the NDRB 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 is processed subsequently for an administrative
involuntary separation or is referred to a court martial for misconduct,
the disability evaluation is suspended pending the outcome of the non-
disability proceedings.  If the action includes either a punitive or
administrative discharge for misconduct or for any basis wherein an Other
Than Honorable discharge is authorized, 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
BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an
unfavorable discharge to be upgraded based solely on the passage of time or
good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service
factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to:
a verifiable continuous employment record; marriage and children’s birth
certificates (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;
attendance 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
 in-service misconduct was an aberration and not indicative of the member’s
overall character.

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 NDRB 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