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USMC | DRB | 2011_Marine | MD1101006
Original file (MD1101006.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110311
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)       20010309 - 20010612     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010613     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 2005080 1      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 92
MOS: 6337
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) NDSM MM

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :
- 20020320 :       For failure to meet Marine Corps height/weight standards.

- 20020501 :       For failure to pass scheduled PFT.

- 20021022 :       For failure to maintain Marine Corps height/weight/body fat standards. Specifically, I am over the maximum weight allowed for my sex. I am directed to meet the following weight reduction goal of 3.2 pounds or a body fat reduction of 1.0 percent per month. Your goal is to lose 20 pounds and 6.0 percent body fat.

- 20030207 :       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.

- 20030415 :       For your assignment to the Marine Corps BCP. You have made reasonable progress but have failed to reach your required body composition while on your second assignment to this program.

- 20030903 :       For your unsatisfactory performance while assigned to the Marine Corps BCP.

- 20030915 :       For disobeying both a SNCO and a NCO. At 1000 on 20030829 you were directed by both MSgt and Cpl to stand-by and not depart the building until counseled for an unrelated incident. You ignored these directions and departed the area, knowing that you were wrongfully disobeying orders to remain. By your own admittance , there were no emergency reasons for your departure. The inability to follow simple instructions is not in keeping with the high standards of the USMC. These actions display a lack of dependability, integrity, endurance, loyalty, judgment, concern for your fellow Marines, and are not in keeping with the special trust and confidence granted to a Marine.

- 20041201 :       For judgment, loyalty, e spr i t de c orps, bearing, tact and insolence and disrespect .

- 20041209 :       For your continually demonstrated deficiencies in conduct by failing to maintain standards of professional conduct and for not maintaining Marine Corps weight control standards.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ UNSATISFACTORY PERFORMANCE ”

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.        The Applicant desires to become eligible for the GI Bill.
2.       The Applicant contends he was separ ated due to being out of height/ weight standards, not misconduct, and should have received an Honorabl e characterization of service.

Decision

Date : 2012 0523             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 nine 6105 counseling warnings , and no misconduct resulting in non-judicial punishment (NJP) or court-martial. Based on the Applicant’s unsatisfactory performance while assigned to the B ody C omposition P rogram (BCP) , command administratively processed for separation . When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel and submit a written statement. The Applicant was not entitled to an administrative board.

: (Nondecisional) The Applicant desires to become eligible for the GI Bill. 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. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends he was separated due to being out of height / weight standards, not misconduct, and should have received an Honorable characterization of service. The record shows the Applicant was separated due to unsatisfactory performance while assigned to the BCP. The record also shows the Applicant was overweight by 50 to 65 pounds with 30% to 33% body fat while assigned to the program. The Applicant gained over ten pounds and 3% body fat while assigned to BCP. Further, the record reflects the Applicant was unable to pass a physical fitness test. Competent medical authority determined that t he Applicant’s condition was not due to any underlying medical cause. The record clearly reflects unsatisfactory performance due to lack of reasonable effort, which constitutes a significant n egative aspect of service and warrants a General (Under Honorable Conditions) characterization. Therefore, the NDRB det ermined no change is warranted. Relief denied.

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 . 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 for additional information.


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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