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USMC | DRB | 2009_Marine | MD0901438
Original file (MD0901438.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090429
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)       20040712 - 20041024     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20041025     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090116      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 72
MOS: 6337
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20050812:      For failure to maintain HT/WT and/or BF% standards.
- 20060330:      For under age alcohol consumption.
- 20061023:      For failure to maintain HT/WT and/or BF% standards.
- 20061204 :       For failure to maintain HT/WT and/or BF% standards.
- 20071109 :      For failure to maintain HT/WT and/or BF% 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 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.       Participated in the Body Composition Program (BCP) , including physical training on his own time, but still failed to make satisfactory progress.
2. Served over four years of a five year enlistment with no misconduct. Should have been allowed to finish his enlistment
while on BCP and been honorably discharged.

Decision

 Date: 20 0 9 0107        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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and no other misconduct. Based on the Applicant ’s failure to adhere to Marine Corps height , weight and body fat standards , and his subsequent failure to make satisfactory progress while assigned to the Body Composition Program (BCP) , command administratively processed for separation. When notified for a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified coun sel, submit a written statement and request an a dministrative discharge b oard.

: (Decisional) ( ) . The Applicant contends that he followed the guidelines of the BCP, including doing physical training on his own time, but still failed to make satisfactory progress. The record shows that the Applicant was assigned to BCP on two separate occasions. The first was from Aug 2005 until Feb 2006. The Applicant was removed from the program after attaining and maintaining body composition standards. The Applicant was assigned again in Oct 2006 and was removed from the program in June of 2007. In Oct 2007, the Applicant was again not in compliance with standards . The Applicant was notified of his command’s intent to administrative ly separat e him , but separation was suspended for twelve months. During this suspension, the Applicant was given a third opportunity to bring himself within standards and was required to lose .75 pounds or .6% body fat per month for twelve months . The Applicant failed to comply with these extremely lenient measures and proceeded to gain approximately 18 pounds from Nov 2007 to Dec 2008 , attaining a final weight of 235 pounds , which was 28 pounds over his established limit of 197 pounds. Additionally, the Applicant’s body fat was 27%, well outside the established limit of 18% . The Applicant submits no documented evidence of medical or other issu es beyond his control that would have prevented him from making satisfactory progress while assigned to BCP . The NDRB determined that the Applicant’s command tried to help him attain proper BCP standards and displayed considerable patience on the matter. However, the Applicant failed to make reasonable efforts to bring himself into standards .

: (Decisional) ( ) . The Applicant contends that he served over four years of a five year enlistment with no misconduct and should have been allowed to finish his enlistment while assigned to BCP. Further, the Applicant believes that he would have been honorably discharged had he been allowed to complete his enlistment in this manner. The record reflects that the Applicant had no misconduct while in service and had been awarded a Good Conduct Medal. However, the Applicant’s proficiency and conduct marks were well below average at 4.0/3.9. These marks warranted a General (Under Honorable Conditions) discharge characterization. Additionally, had the Applicant made reasonable effort s to comply with the very moderate weight loss requirements which were directed as part of the suspension of his administrative separation, he would have been allowed to remain in service through the end of his enlistment. However, as previously noted , the Applicant fa iled to make reasonable efforts to achieve his weight goal and the suspension of discharge was vacated.

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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