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USMC | DRB | 2010_Marine | MD1001147
Original file (MD1001147.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100401
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)       20010409 - 20010528     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010529     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20031024      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 52
MOS: 6402 (Aircraft Maintenance and Administration Clerk)
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , LoA

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20011019 :       For diagnosed condition not a disability (right tibia avulsion fracture) and any resultant or aggravated conditions that interferes with the effective performance of your duties .

- 20020419 :       For being determined to be overweight and are directed to meet an assigned weight goal of 181 lbs. Failure to take corrective action while assigned to the Body Composition Program (BCP) may result in administrative separation or li mitations on further service.

- 20021104 :       Counseled this date for unsatisfactory performance while assigned to the Marine Corps BCP. Due to insufficient effort, you have not met your weight/body fat reduction goals as prescribed by the medical officer. Failure to take corrective action will result in administrative separation from the USMC for either weight control failure or unsatisfactory performance per paragraphs 6215 or 6206 of the Marine Corps Separ ation and Retirement Manual.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
“ GENERAL (UNDER HONORABLE CONDITIONS) ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected , as appropriate.


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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 .





DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Nondecisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge in order to be eligible to receive educational benefits and better provide for his family.

2.       Decisional issues : The Applicant contends that he had no conduct or performance issues while in service other than maintain ing his weight and that his work was excellent, as such, he does not warrant the characteriza tion of service he received.

Decision

 Date: 20 1 1 04 29          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 NDRB 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 identified one decisional issue for the NDRB’s consideration ; additionally, the NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant enlisted with a Marine Corps Recruiting District level waiver for failing to meet the Marine Corps height and weight standard . As part of the waiver process, he was counseled on the requirements and expectations of the Marine Corps in regards to his height and weight and body composition and personal appearance . On 11 March 2002, the Applicant was formally assigned to the Marine Corps Body Composition Program (BCP): he exceeded his allowable maximum weight for his height by 15 pounds and his body fat percentage exceeded the maximum allowable percentage by 8%. Appropr i ately credentialed health care providers determined that the Applicant’s weight issue was not the result of an y underlying medical condition or associated disorder and recommended an appropriate weight loss process over the ensuing six months. Additionally, t he Applicant was assigned to the command remedial physical conditioning program and provided Semper Fit weight loss and dietary educational classes. The Applicant’s progress and performance throughout his assignment to the Body Composition Program was well documented and was monitored by his chain of command. Having not met the Marine Corps body composition standards during his first six-month body composition program assignment, the Applicant was authorized an extension in the program for a second six-month period. At that time, the Applicant was exceeding h is maximum allowable weight by 44 pounds and the maximum allowable body fat percentage by 15%. On 11 March 2003, at the completion of the second six-month assignment to BCP (1 year total time), the Applicant exceeded his allowable weight by 54 pounds.

On 11 September 2003, the command notified the Applicant of their intent to separate him administratively from the service due to unsatisfactory performance due to his failure to make any reasonable progress as noted by his gain of 54 pounds while on the B ody C omposition P rogram. The Applicant acknowledged the notification in writing and elected to waive his right to consult with qualified legal counsel or to submit written matters for consideration to the Separation Authority. The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a demonstrated unsatisfactory performance of duties ; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - General ( Under Honorable Conditions ) - was warranted. On 06 October 2003, t he Separation Authority directed the Applicant be discharged for the reason as stated and that he also receive an RE-4 reenlistment code - not recommended for re-enlistment.

Nondecisional Issues: The Applicant seeks a change in characterization of service at discharge to Honorable in order to facilitate access to Department of Veterans Affairs (VA) educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.
Decisional Issue ( ) - . The Applicant contends that he had no conduct or performance issues while in service , other than maintaining his weight , and that his work was excellent; as such, he does not warrant the characterization of service he received and seeks an upgrade. The NDRB recognizes that serving in the Marine Corps is challenging. M ost members of the Marine Corps serve honorably and earn an honorable discharge ; i n fairness to those service members, commanders and separation authorities are directed to ensure that those less deserving service members receive no higher characterization than is due.

In accordance with paragraph 6206 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), a Marine may be separated if the Marine is unqualified for further service due to unsatisfactory performance. Unsatisfactory performance is further defined as either: (1) p erformance of assigned tasks and duties in a manner that does not contribute to unit readiness and/or mission accomplishment as documented in the service record or (2), a f ailure to maintain required proficiency in grade as demonstrated by below average proficiency/conduct numerical marks , or adverse fitness report markings , or comments accumulated in the Enlisted Performance Evaluation System . Separation processing may not be initiated until the Marine has been counseled in accordance with the standards of paragraph 6105 of the MARCORSEPMAN . If the Marine does not then respond to counseling, commanders may initiate separation . Paragraph 6206 further states that a Marine may also be separated under this basis for failure to conform to weight standards as a result of apathy or a lack of self - discipline. In the Applicant’s case, the command determined that his neglect and failure to take corrective actions resulting in a change from 15 to 54 pounds over his allowable maximum weight was the result of apathy and neglect. As such, unsatisfactory performance vice weight control failure was the more appropriate narrative reason for separation . The NDRB found no error of fact, law, procedure, or propriety that might afford the Applicant relief. Accordingly, relief based on issues of propriety is not warranted.

When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record . After reviewing the Applicant ’ s service record , t he NDRB determined that the performance and conduct of record , which forms the primary basis for determining the character of service, was honest and faithful , but that significant negative aspects of his performance of duty did outweigh the positive aspects of his service . T he NDRB determined the characterization of the Applicant ’ s service at discharge - General ( Under Honorable Conditions) - was equitable and is consistent with the characterization of discharge given others in similar circumstances. A s such, the NDRB determined that the awarded characterization was appropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that 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 .


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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