Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901360
Original file (MD0901360.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090421
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)      20030924 - 20040426     Active: 

Period of Service Under Review:
 Date of Enlistment: 20040427      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20060921       H ighest Rank:
Length of Service: Year(s) Month(s) 26 D ay(s)
 Education Level:         AFQT: 34
MOS: 0161
Proficiency/Conduct Marks (# of occasions): ( ) / ( )   Fitness Reports:
Awards and Decorations (per DD 214):     Rifle LoA (2)
Periods of UA/CONF: NJP: SCM: SPCM: CC:

Retention Warning Counseling:

- 20050324 :      For unsatisfactory performance while assigned to the Marine Corps BCP.

- 20050328 :      For assignment to the Marine Corps Body Composition Program.

- 20051102 :      For having not made reasonable progress and failed to reach body composition goals -Extension

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:

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. Wants to use the G.I. bill.
2. Unjust discharge due to medical issues.
Decision

 Date: 20090706            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 three 6105 counseling warnings, but no misconduct that resulted in nonjudicial punishment, court-martial, or civilian conviction. Based on the Applicant’s failure to maintain Marine Corps weight standards, command administratively processed for separation. When notified for Administrative Separation Processing, the Applicant waived rights to consult with qualified counsel and submit a written statement.

 : (Nondecisional) The Applicant wants an upgrade to use the post-911 G.I. bill. 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.

: (Decisional) ( ) . The Applicant claims he was not suppose to be put on the Body Composition Program (BCP) because he had two shoulder surgeries, one before and one during his time on the BCP. The Applicant entered the Marine Corps with a weight/body fat percentage waiver on 27 April 2004, which is not uncommon if the Marine Corps identify someone who has the potential to better himself. At that time, the Applicant weighed 197 pounds, 11 pounds over his maximum weight (standards for his height of 69 inches are 186 pounds/18 percent body). On 28 February 2005, the Applicant weighed 221 pounds with 34 percent body fat (+35 pounds/+16 percent). He was assigned to the BCP for six months, but did not lose any weight or body fat. In spite of gaining an additional 14 pounds, the Applicant was given a six-month extension. The Applicant’s BCP extention ended on 28 March 2006 and he weighed 59 pounds over his maximum allowable weight with a body fat percentage of 38 percent. Although the Applicant failed to meet the Marine Corps height and weight standards after his six-month extension, his command gave him four more months to lose weight and/or body fat. The Applicant’s command finally advised him on 24 July 2006 of being recommended for administrative separation and officially notified him on 14 August 2006. It is quite clear the Applicant made no discernable effort to improve himself and thus let the Marine Corps down. There is no evidence in his records, nor did the Applicant provide any, to indicate and support the Applicant’s claim that his shoulder surgeries prevented him from participating in the BCP or prohibit him from doing any physical activity, such as walking.

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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0901793

    Original file (MD0901793.rtf) Auto-classification: Denied

    On 28 March 2008, eight months into the BCP program, the Applicant was 197 pounds and 22 percent body fat, still five pounds and four percent body fat over the maximum allowable standard. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the...

  • USMC | DRB | 2011_Marine | MD1101781

    Original file (MD1101781.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20060804 - 20060917Active: Period of Service Under Review: Date of Current Enlistment: 20060918Age at Enlistment: Period of Enlistment: Years13 MonthsDate of Discharge:20101027Highest Rank:Length of Service: Year(s)Month(s)10 Day(s)Education Level: AFQT:51MOS: 6046Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...

  • USMC | DRB | 2008_Marine | MD0800925

    Original file (MD0800925.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall WEIGHT CONTROL FAILURE.Discussion (Equity): RELIEF WARRANTED.When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Whenever a member is being processed through the...

  • USMC | DRB | 2009_Marine | MD0900288

    Original file (MD0900288.rtf) Auto-classification: Denied

    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). The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length...

  • USMC | DRB | 2009_Marine | MD0902230

    Original file (MD0902230.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2006_Marine | MD0601151

    Original file (MD0601151.rtf) Auto-classification: Denied

    You have four months from this date to reduce your weight to 214 lbs, or below and/or reduce your body fat to 18% or below; however you may also raise your PFT to a first class score while maintaining 22% or less body fat percentage within the time period to be removed from the program. Elements of Discharge: [INVOLUNTARY] Date Notified: 20050615Basis for Discharge:WEIGHT CONTROL FAILURELeast Favorable Characterization: Commanding Officer’s Intended Recommendation: Record Supports Narrative...

  • USMC | DRB | 2006_Marine | MD0601026

    Original file (MD0601026.rtf) Auto-classification: Denied

    ex-PFC, USMCMD06-01026Current Discharge and Applicant’s Request: Application Received: 20060731Narrative Reason for Separation: Character of Service:Discharge Authority: MARCORSEPMAN PARA 6206.5Last Duty Assignment/Command at Discharge: 2DAABN 2DMARDIV CAMLEJ NC 28542Applicant’s Request:Narrative Reason change to: NONE REQUESTEDCharacterization change to:Review Requested:Representation: NONE Decision: Date of Decision:20070607 The Discharge shall : GENERAL (UNDER HONORABLE...

  • USMC | DRB | 2014_Marine | MD1401157

    Original file (MD1401157.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Based on the Applicant’s unsatisfactory performance on BCP, command administratively processed for separation. ” 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.

  • USMC | DRB | 2005_Marine | MD0500755

    Original file (MD0500755.rtf) Auto-classification: Denied

    The basis for discharge is the Applicant's failure to meet standards for weight control and body fat composition. Commanding Officer's comments: "Based on Lance Corporal C_'s (Applicant's) failure to meet the Marine Corps Standards for weight control and body fat, it is requested that he be separated from the Marine Corps with a general discharge." The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for...

  • USMC | DRB | 2006_Marine | MD0600068

    Original file (MD0600068.rtf) Auto-classification: Denied

    Applicant advised to loss 16 pounds or 5 percent body fat and maintain for 6-month BCP assignment period.021029: First Endorsement to CO’s ltr of 29 Oct 02. I am recommending that he receive a General under honorable conditions discharge.This recommendation is based upon the respondent’s failure to meet Marine Corps weight standards set forth by the Body Composition Program (BCP) . According to the reference, a Marine assigned to the BCP on two separate occasions (e.g., first and second...