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USMC | DRB | 2010_Marine | MD1002167
Original file (MD1002167.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100831
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)       20000218 - 20000312     Active:            20000313 - 20031202

Period of Service Under Review:
Date of Current Enlistment: 20031203     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070621      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 35
MOS: 1833
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) (3) (2) LoA (3)
Periods of CONF :

NJP:

- 20061206 :      Article (Absent from appointed place of duty)
         Article 92 (Failure to obey lawful order)
         Article 112 (Drunk on duty)
         Article 134 (Incapacitated for duty by overindulgence in alcohol)
          Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050224 :       For failure to meet Marine Corps height and weight standards as outlined by MCO P6100.12K . You were screened and evaluated at the Company Level and found to be deficient in meeting the following standards: Height : 65 inches, Weight: 184 pounds. Your maximum weight is 165 pounds and you were determined to be 19 pounds overweight. Your body fat percentage was recorded as 28%. You were screened on 20050120 by the CO Company A and an Appropriately Credentialed Health Care Provider advising you that you were determined to be overweight. You have failed to make or take the necessary corrective steps/actions to meet the standards required of all Marine s per MCO 6100.12K on your own and demonstrate a lack of self discipline. You are officially assigned to the Remedial Physical Conditioning Program at the Company L evel as of 20050211, in an effort to help you take those necessary steps to correct your deficiencies. The MCTFS will identify your initial assignment to the BCP program. Additionally, I am advised that while assigned to the Body Composition Program, I may be eligible, but never recommended , for promotion while on such an assignment. Additionally, failure to make satisfactory progress while assigned to the BCP may result in administrative reduction in grade, which excludes my requirement to being officially charged at NJP/Article 15 proceedings.

- 20050823 :       Concerning your extension on the Marine Corps Body Composition Program. You have not made reasonable progress, and have failed to reach your required body composition while on your first assignment to the Body Composition Program. Therefore, you have been granted a one-time extension of six months to meet body composition standards set forth in MCO P6100.12 .

- 20060303 :       For failure to meet Marine Corps height and weight standards. I was screened and evaluated at the Company Level and found to be deficient in meeting the following standards: Height : 65 inches, Weight : 194 pounds . My maximum weight is 165 pounds and I was determined to be 29 pounds overweight. My body fat percentage was recorded as 27%. I was screened on 20060223 by the CO Company A and an Appropriately Credentialed Health Care Provider advising me that I was determined to be overweight. I have failed to make or take the necessary corrective steps/actions to meet the standards required of all Marines per MCO 6100.12K on my own and demonstrated a lack of self discipline. I am officially assigned to the Remedial Physical Conditioning Program at the Company L evel as of 20050211, in an effort to help me take those necessary steps to correct your deficiencies. The MCTFS will identify my initial assignment to the BCP program. Additionally, I am also advised that while assigned to the Body Composition Program, I may be eligible but never recommended for promotion while on such an assignment . Additionally, failure to make satisfactory progress while assigned to the BCP may result in administrative reduction in grade, which excludes my requirement to being officially charged at NJP/Article 15 proceedings.

- 20061211 :       For your unsatisfactory performance while assigned to the Marine Corps BCP for a period nearing two years. Introductory weight on 20050125 was 184 pounds, height 65 inches, waist 41.5 inches, neck 17.5 inches, body fat was 28 % . Last recorded weight on 20061208 was 197 pounds, height 65 inches, waist 42 inches, neck 17 inches with 30% body fat. Due to insufficient effort, you have not met your weight/body fat reduction goals as prescribed by the medical officer.

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.        The Applicant contends he should have received an Honorable characterization of service since he was separated for his weight, not misconduct.
2.       The Applicant contends Post - Traumatic Stress Disorder (PTSD) contributed to his weight gain.

Decision

Date : 2011 1208             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence, ), Article ( , ), Article 112 ( Drunk on duty , ), and Article ( Article , : incapacitation due to overindulgence in alcohol ). Based on the Applicant ’s failure to remain within Marine Corps height and weight standards , command administratively processed for separation. When notified of administrative separation processing, the Applicant waived rights to consult with a qualified counsel and submit a written statement.

: (Decisional) ( ) . The Applicant contends he should have received an Honorable characterization of service since he was separated for his weight, not misconduct. The Applicant’s proficiency and conduct (Pro/Con) marks were 4.6/3.9 overall. The Applicant’s 3.9 conduct mark is 0 .1 below that which is normally considered sufficient for honorable service. However, it is evident in the record that the Applicant’s job performance was never an issue. He was separated exclusively for his we ight and received excellent remarks from his Staff NCOs as well as his company commander regarding his knowledge, work ethic, and general job performance. The record also shows the Applicant had honorable co mbat service in Iraq. After a complete review of the Applicant’s service records, and in light of the unique circumstances in this case, the NDRB determined the Applicant’s record of service warrants an Honorable characterization of service. Therefore the Applicant’s characterization will change to Honorable, and the narrative reason for separation will change to SECRTARIAL AUTHORITY.

: (Decisional) ( ) . The Applicant contends PTSD contributed to his weight gain. There is no evidence in the record to support the Applicant’s issue. The Applicant provided no evidence to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. An upgrade for this issue would be inappropriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to .

 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 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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