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USMC | DRB | 2009_Marine | MD0902571

Original file (MD0902571.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090917

Characterization of Service Received: UNDER HONORABLE CONDITIONS (GENERAL)

Narrative Reason for Discharge: INVOLUNTARY DISCHARGE – WEIGHT CONTROL FAILURE
Authority for Discharge: MARCORSEPMAN 6206 [WEIGHT CONTROL FAILURE]

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19910205 - 19920128     Active:

Period of Service Under Review:
Date of Current Enlistment: 19920129     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950801      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 55
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA

Periods of UA / CONF :

NJP:

- 19930517 :      Article (Failure to obey order or regulation – 19930423)
         Article (False official statements – 19930423)
         Awarded: Suspended:

- 19930607 :      Article (Absence without leave – Failure to be at appointed place of duty 2215-0300, 19930530
         Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ; specifically, Disrespectful conduct to the Duty NCO 19930530 )
         Article (Failure to obey lawful order or regulation ; NJP Restriction Order 2215-0300, 19930530)
         Article (General article , Violation of restriction: 2215-0300, 19930530)
         Awarded: CCU 30 DAYS Suspended:

- 19940322 :      Article (Absence without leave - specifically; failure to be at appointed place of duty 1700 – 1730, 19940224 )
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 19940712 :      For failure to make satisfactory progress in achieving goal while assigned to weight control program since 19940228. SNM advised that failure to take corrective action could result in administrative separation or limitation of further service .

- 19940712 :      For P F T failure in 3 mile run. SNM advised that failure to take corrective action could result in administrative separation or limitation of further service.

- 19941129 :       For being overweight , failure to obey lawful orders or regulations , making false official statements , and failure to be at appointed place of duty. SNM advised that failure to take corrective action could result in administrative separation or limitation of further service .

- 19950619 :      For substandard performance in meeting weight reduction goal, S N M being processed for discharge due to unsatisfactory performance of duties and a pattern of misconduct.

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. ALMAR 57/93 [CMC 161805ZFEB93] revised enlisted separation policy for weight control failure. It cancelled paragraph 6206.1 of the Marine Corps Separation and Retirement Manual.

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.       Nondecisional issues: None

2.       Decisional issue : (Equity) Applicant contends that his discharge characterization of service was inequitable in that he was wrongfully separated as a weight control failure. Applicant contends that he was recommended by the Medical Officer for a weight waiver due to his low body fat percentage. Additionally, Applicant contends that he was within 4 months of completion of his obligated service and should have been honorabl y discharged.

Decision

Date: 20 10 10 15          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 submitted no additional documentation for consideration by the Board. T he Applicant identif ied one decisional issue to the Board. T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure his discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included four 6105 retention-counseling warnings and three non-judicial punishments for violations o f the Uniform Code of Military Justice (UCMJ) as follow :

•         Article 86 ( Absence without leave – 2 specific ations; Failure to be at appointed place of duty ),
•         Article 91 ( Insubordinate conduct – specifically, disrespectful conduct to the Duty NCO ),
•         A r ticle 92 ( Violation of a lawful order or regulation – 2 specifications ) ,
•         Article 107 (False o fficial s tatements)
•         Article 134 (General Article , s pecifically, violation of lawful restriction) .

The Applicant was found to exceed the allowable Marine Corps height and weight standards. He was formally evaluated by an appropriately credentialed health care provider and was recommended for a program of weight loss to meet the expected standards. The Applicant was counseled regarding his assignment to a formal weight control program, monitored by the command on a weekly basis , and re-evaluated for retention in the program for a second 6-month period of weight loss. Additionally, during this period , the applicant twice failed the Marine Corps Semi-Annual Physical Fitness Test due to failing the run portion of the test.

Though the Applicant’s body measurements calculated his body fat percentage to be under 18%, the command did not recommend him for a Marine Corps Weight Waiver due to the Applicant’s personal appearance and his physical condition. Throughout the Applicant ’ s period of misconduct and his assignment to weight control program, he was notified , in writing , that failure on his part to take corrective action would result in administrative separation or limitation on his future service.

Based on the A pplicant ’ s failure to make satisfactory progress while assigned to two periods of formal weight control program and his demonstrated pattern of misconduct as documented by his three non-judicial punishments, the Applicant’s Command recommended him for separation. The Separation Authority (Commanding General, 2 nd Force Service Support Group) reviewed the two different bas e s of separation (Misconduct (Pattern of Misconduct) and Weight Control Failure) and directed the Applicant ’ s separation for Weight Control Failure with a characterization of service as Under Honorable Conditions (General). Had the Applicant been separated for Misconduct (Pattern of Misconduct) , the least favorable characterization of service the Applicant would have warranted would have been Under Other Than Honorable Conditions.

: (Decisional) ( Equity) . The Applicant believes that his discharge characterization of service was inequitable. He contends that he was wrongfully separated as a weight control failure since he was recommended by the Medical Officer for a weight waiver due to his low body fat percentage. Additionally, Applicant contends that he was within 4 months of completion of his obligated service and should have been honorable discharged. The Applicant enlisted in the Marine Corps with a waiver for exceeding the Marine Corps height and weight standards. Throughout his enlistment, he was counseled regarding his failure to meet height and weight standards. After twice failing assignment to a formal weight control program, the applicant was recommended for administrative separation due to Weight Control Failure.

Standards of performance and conduct as determined by MCO P1070.12 series ( Individual Records Administration Manual (IRAM) ) and the customs of the service form the primary basis for determining characterization of service. Minimum acceptable average proficiency and conduct markings during an enlistment are 3.0 and 4.0 respectively. Failure of a Marine to achieve either of these standards is evidence of significant negative aspects, outweighing all but the most m eritorious military records. In accordance with the Marine Corps Separation and Retirement Manual, Marines who do not achieve these standards should not receive an H onorable discharge. The Applicant ’ s proficiency and conduct markings in service were a 4.4/3.9, respectively. As such, a n Under Honorable Conditions (General) characterization of service was warranted.

The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect ed a willful failure to meet the requirements of his contract and falls far short of that required for an upgrade of his characterization of service . The Board determined an upgrade would be inappropriate.

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 UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain INVOLUNTARY DISCHARGE - .

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 .

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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USMC | DRB | 2009_Marine | MD0902571

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