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USMC | DRB | 2009_Marine | MD0900937
Original file (MD0900937.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090304
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:         USANGR   19970701 - 19971212 ELS
 USMCR (DEP)       19990311 - 19990517     Active:            19990518 - 20030220

Period of Service Under Review:
Date of Enlistment: 20030221     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20041001      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 36
MOS: 0311/2141
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2) MM

Periods of UA / CONF :

NJP:
- 20040902 :       Article 121 (Larceny - shoplifting)
         Awarded: Suspended:

SCM:    SPCM:   CC:

Retention Warning Counseling :

- 20030828 :       For first test failure.
- 20030905 :       For improper hygiene.
- 20030919 :       For his second test failure
- 20031002 :       For failure to maintain his BEQ room by SSgt in conjunction with his personal hygiene.
- 20031020 :       For improperly marching his students from the chow hall to the ramp. He marched them at round step till he gained access to the ramp then properly marched them.
- 20031020 :       For failure to produce a light duty chit. He did not PT because he said he was on light duty but was not.
 - 20031031 :       For not looking out for the well being of his subordinates and not looking out for their welfare.
- 20031107 :       For your lack of leadership ability and unsatisfactory personal hygiene. On 20030905 and again on 20031002 you were counseled for improper personal hygiene. In addition you have been counseled on multiple occasions for your lack of leadership ability and setting a poor example for junior Marines in your charge.
- 20031210 :       You were the subject of a Competency Review Board due to your professional incompetence. The factual circumstances upon which a recommendation for this board is based upon a 6105 Counseling dated 20031107, and multiple adverse counseling. The recommen d ation of the board is reduction to LCpl, the board further recommends that the reduction be suspended for 6 months.

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 read: “ Navy and Marine Corps Achievement Medal, Sea Service Deployment Ribbon (2d Awd), National Defense Service Medal, Meritorious Mast, Rifle Qualification Badge (Marksman), Pistol Qualification Badge (Marksman), Good Conduct Medal ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19989517 UNTIL 20030220 ”

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 .




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

Applicant’s Issues

 1. The Applicant noted that VA records reflected his discharge as Honorable , which was different from his DD214 .

Decision

 Date : 20 0 9 0810            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 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nine NAVMC 118/11 (Page 11) warnings and one nonjudicial punishment ( NJP ) for violation of the Uniform Code of the Military Justice (UCMJ): Article 121 (Larceny, shoplifting of two packs of cigarettes from the 7 Day Store ). The Applicant was also the subject of a Competency Review Board (CRB) that voted unanimously on the Applicant’s professional incompetence and recommended a reduction to the grade of E-3. The Applicant ’s failure while on his second assignment to the Body Composition Program (BCP) led to his administrative separation. When processed for separation , the Applicant waived right to submit a written statement, but elected to consult with qualified counsel.

: (Decisional) ( ) . The Applicant contends he is entitled to a discharge upgrade because U.S. Department of Veterans Affairs ( VA ) r ecords characterize d his discharge s as H onorable from 01 July 1997 to 12 December 1997 and 18 May 1999 to 01 October 2004, and he would like his military record to reflect an Ho norable discharge . For the edification of the Applicant, VA record entries, record errors or decisions reached by the VA to determine if former service members rate certain VA benefits do not effect previous discharge decisions made by the Naval service . The NDRB noted that th e Applicant’s DD-214 and all associated service records clearly denote a General (Under Honorable Conditions) discharge was awarded for his final enlistment period . In addition, the NDRB also contacted the VA in reference to the document provided by the Applicant , and found that the document provided was erroneous in that , it incorrectly classified his last enlistment as Honorable . T he VA affirmed that this document was computer - generated by the hospital , but the information regarding the character of discharge was incorrect . According to the VA database , the Applicant received a General (Under Honorable C onditions ) vice an Honorable discharge . The VA also mentioned they will be resubmitting the le tter to the Applicant with the correct discharge characterization .

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 .

 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 .




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 at 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

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