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USMC | DRB | 2012_Marine | MD1200003

Original file (MD1200003.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110927

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)       20040615 - 20050605     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050606     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080610      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 70
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20060406 :       Article (Failure to obey order or regulation, to wit: consuming alcoholic beverages while under the legal drinking age of 21)
         Article (General A rticle, to wit: drunk and disorderly)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070501 :       For assignment to the Marine Corps Body Composition Program IAW MCO P6100.12. Your weight and body fat percentage does not meet acceptable Marine Corps standards. Your weight is current ly 187 pounds and your body fat is currently 21 percent. Your last PFT score was a 205, which is a 2 ^nd Class PFT for your age bracket. You have six months from this date to reduce your weight to 176 pounds or below and/or reduce your body fat by 3 percent or more, within the time period to be removed from the program.

- 20070611:       For on 20070524, you were instructed not to take any personal phone calls while on your post. On or about 2115 Sgt A_ found you on the phone while on post, you were then instructed to get off the phone and stay off. Not even an hour and a half later Sgt A_ caught you back on the phone without your post standing gear on. In doing so your actions had jeopardized the limited area safety and security.

- 20070611 :       For on 20070606, you were UA from morning accountability formation at 0530 for operation. In doing so your actions had jeopardized the p latoon readiness for conducting operations.

- 20070801 :       For your unsatisfactory performance from 01 Jul - 01 Aug 2007 while assigned to the Marine Corps BCP. Due to insufficient efforts, you have not met your weight/body fat reduction goals as pr escribed by the medical officer.

- 20071015 :       For your unsatisfactory performance while assigned to the Marine Corps BCP from 01 September through 01 October 2007. Due to insufficient efforts, you have not met your weight/body fat reduction goals as pre scribed by the medial officer.

- 20071210 :       For violation of Articles 91, 92, and 107 , s pecifically , you were d isrespectful in language toward a SNCO, you failed to follow a lawful orde r given by a SNCO to have your S ervice A uniform tailored and ready for inspection by a prescribed time, and you made a false official statement to a SNCO regarding the whereabouts of your spouse and your current address.

- 20080229 :       For your unsatisfactory performance while assigned to the Marine Corps BCP. Due to insufficient efforts, you have not met your weight/body fat reduction goals as prescribed by the medi c al 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 believes his injury limited his ability to comply with weight standards.
2.       The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date : 20 1 2 1011          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 g overnment al a ffairs 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 that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, to wit: consuming alcoholic beverages while under the legal drinking age of 21 ) and Article 134 ( General A rticle , to wit: drunk and disorderly ) . On 16 April 2007 , the Applicant was initially assigned to the Body Composition Program (BCP) . He was subsequently counseled for failing to make significant progress on 1 August 2007, 15 October 2007 , and 29 February 2008. Based on the Applicant’s failure to make satisfactory progress in the BCP, his command recommended that he be separated from the Marine Corps . When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative board .

: (Decisional) ( ) . The Applicant believes his injury limited his ability to comply with weight standards. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his injury contributed to his inability to comply with weight standards. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Also, the submission of Department of Veterans Affairs disability ratings do not dispute the actions of his command in assigning him to the BCP and counseling him for failing to make significant progress. Because he failed to make significant progress, no extensions or reassignments were warranted. After a complete review of the records, the NDRB determined the discharge for Unsatisfactory Performance was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant stated he has been fully employed, is a member of the American Legion and Disabled American Veterans, and volunteers annually to the Nort h west Harris County Heart Walk . The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he Board determined the awarded characterization of service shall remain General ( Under Honorable Conditions ) . 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 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 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2012_Marine | MD1200003

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