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USMC | DRB | 2009_Marine | MD0901313
Original file (MD0901313.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090310
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)       20010127 - 20010129     Active:  

Period of Service Under Review:
 Date of Enlistment: 20010130     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050529      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 66
MOS: 0844
Proficiency/Conduct M arks (# of occasions): /          Fitness Reports:

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

Periods of UA / CONF :

NJP:
- 20030425 :      Article 91 ( Insubordinate conduct toward warrant, noncommissioned or petty officer)
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling: 15

- 20020226: For not properly signing out for base liberty.

- 20021218: Not meeting height and weight standards.
- 2003 0408 :       For a reminder that he had been on the Body Composition program for 12 weeks and failing in performance.

- 20030408:      For a reminder that he had been on Body Composition Program for 16 weeks and his performance is unacceptable.
- 20030408 :      For violating the Liberty Campaign Plan by possessing hard liquor in his barracks room .

- 20030424:      For a reminder that he had been on Body Composition Program for 18 weeks and his performance is unacceptable
- 15 0030505 : For receiving battery level NJP for viola tion disrespectful towards a s ergeant .

- 20030827: Granted a one time extension of six months to meet body composition standards.

- 20031021: For a reminder that he had been on Body Composition Program for 36 weeks and his performance is unacceptable.
- 20031024: For a reminder that he had been on Body Composition Program for 42 weeks and his performance is unacceptable.
- 20031216 : For a reminder that he had been on Body Composition Program for 44 weeks and his performance is unacceptable.
- 20031216 : For a reminder that he had been on Body Composition Program for 48 weeks and his performance is totally unacceptable.
- 20031216 : For the time on the program has already expired, but this would be 53 weeks on the program and still gained weight.
20031216: Counseled that you have made unsatisfactory progress while on his first extension for the body composition program.

- 20040709: For failure to pay a cell phone bill and other debts in a timely manner.
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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION.

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. Decisional. Applicant states discharge should Honorable because he had a medical condition which prevented weight loss.

Decision

 Date: 20 100107        Location: Washington D.C .         R epresentation : NONE

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COMPLETION OF ACTIVE SERVICE .
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 fifteen Page 11 counseling warnings-USMC, and one Non-judicial Punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordination to an NCO).

Issue 1 : ( ) . The Applicant contends his General Under Honorable Conditions characterization of service was due to him not making USMC weight standards. He feels t his is inequitable because he suffered from hypothyroidism that prevented his weight lo ss. Review of his service and medical records support the Applicant’s statement he was treated for hypothyroidism from December 2002 until his EAS —however, his medical provider noted in writing that he should be able to maintain proper body weight after April 2003 due to treatment. The Applicant continued to receive adverse counseling entries for weight control through December 2003 . Four of the fifteen page 11 counseling entries the Applicant received were for misconduct not related to his failure to make USMC weight standards. Per MCO P1900.16F, the Marine Corps Separations and Retirement Manual, a Marine may be awarded a General Under Honorable Conditions discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s m ilitary record. Upon separation, if a member’s avera ge proficiency marks are below 4 .0 and average conduct marks below 4.0, the Marine can be awarded a General Under Honorable Conditions discharge. The Applicant’s 4 - year enlistment PRO/CON marks averages were 4.2 and 3.9 respectively , which we re justified due to his four non-weight control related counseling entries and his NJP . Based on these Pro and Con marks , his four non-weight control related counselings and the NJP within his enlist ment period, the command was justified in award ing the Applicant a General Under Honorable Conditions discharge.

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

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge, 20050529 . 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 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 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 Board for Correction of Naval Records (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 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 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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