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USMC | DRB | 2009_Marine | MD0901528
Original file (MD0901528.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090512
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)       20070118 - 20070325     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070326    Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081031     H ighest Rank:
Length of Service: Y ea r ( s ) M on th ( s ) 6 D a y ( s )
 Education Level:        AFQT: 49
MOS: 8915
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of UA/CONF:

NJP: SCM: SPCM: CC:

Retention Warning Counseling :
- 20080305 : For not being within MC weight standards (168 lbs and 35% BF), which is 18 lbs & 9% above max.
- 20080407 : For failure to make satisfactory progress while on BCP.
 - 20080911 :      Failure to make MC body composition standards (Unsatisfactory Performance), due to apathy and lack of self discipline.


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. The Applicant believes her discharge is inequitable because her problems were due to medical problems.       

Decision

 Date: 2010 0520 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings concerning her failure to maintain Marine Corps body composition standards due to unsatisfactory performance as a result of apathy and a lack of discipline, which ultimately led command to administratively process for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and to submit a written statement for consideration by the separating authority. The Applicant was not entitled to an administrative board.

: (Decisional) ( ) . The Applicant contends her discharge is inequitable because she was out of weight standards due to hip surgery and on-going hip problems. Per the medical records, the Applicant started having problems with her hip during boot camp, but was able to maintain the Marine Corps standards. The Applicant’s weight issue became a factor while at her MOS school. In September 2007, her command assigned her to the Remedial Conditioning Program (RCP) when she was only 5 pounds overweight. By mid-October, three months out boot camp, the Applicant had gained a total of 30 pounds and 5% body fat. After six months on the RCP, the Applicant had gained weight and was still out of MC standards. She was formally assigned to the Body Composition Program in March 2008. Initially, her first medical evaluation stated that there was no underlying condition keeping her from achieving the goals set forth. Two months later, after zero progress, the Applicant was reevaluated by medical staff and found that she now has an underlying cause and was put on limited duty and scheduled for surgery, which took place on 11 July 2008. The Applicant was given 30 days convalescent leave and returned to be evaluated by medical staff and begin physical therapy (PT). The PT was delayed for about 10 days due to the Applicant taking additional leave to get married. The Applicant was given a recommended rehabilitation schedule, which the Board recognizes that everyone progresses differently, but nothing in the medical records indicates she could not perform her rehabilitation on schedule. The notification for discharge on 19 September 2008 stated she was currently 15 pounds over weight and 36 % body fat. The command discharged the Applicant on 31 October 2008 due to unsatisfactory performance, the main reason being failure to conform to weight standards as a result of apathy and a lack of self-discipline.

The NDRB carefully considered the Applicant’s injury and how it impacted her in the performance of her duties. The Board understands how injuries can alter one’s physical fitness regiment, but the Board also realizes that the individual must adapt accordingly to maintain standards. The command recognized that the Applicant was on limited duty and was unable to run and march, but also stated that her medical condition did not preclude her from doing other exercises or altering her eating habits. The NDRB acknowledged that the Applicant had a significant injury that impacted her performance, but a majority of the Board felt that she did not put forth a level of effort that was befitting of a Marine trying their very best to overcome their obstacles. Words and phrases, such as: apathy, lack of discipline/initiative/judgment/leadership and unsatisfactory appearance; describes a Marine that has given up and no longer wants to serve. The majority of the Board opined that had the Applicant given a reasonable effort, the command would have discharged her due to weight control failure or based on a recommendation from the Physical Evaluation Board (PEB) due to the injury; both of which would have rated an Honorable discharge based on her service record. By a majority vote, the NDRB determined that the command properly discharged the Applicant and the characterization was warranted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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 and Post-Service Conduct .


Pertinent Regulation/Law

 A. Paragraph 6206, UNSATISFACTORY PERFORMANCE , 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 Disable d American 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 their 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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