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USMC | DRB | 2012_Marine | MD1200583
Original file (MD1200583.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120119
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)       19940616 - 19950605     Active:   HON 19950606 - 199 81025
                                    HON 19981026 - 20001214
                          
Period of Service Under Review:
Date of Current Enlistment: 20001215     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050502      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 34
MOS: 0369
Proficiency/Conduct M arks (# of occasions): NONE         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (3) (2) (2) (2) CoC ( 5 ) MM (3) LoA

Periods of UA / CONF :

NJP:              SCM:              SPCM:             CIVIL ARREST:

Retention Warning Counseling :

- 20030930 :       For failure to confirm to Marine Corps height and weight standards. You are currently 242 lbs. and the maximum permitted weight for your height is 203 lbs.

- 20040621 :       For failure to confirm to Marine Corps height and weight standards. You are currently 247 lbs. and the maximum permitted weight for your height is 203 lbs.

- 20050310 :       For unsatisfactory performance while assigned to the Marine Corps Body Composition Program ( BCP ) . 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 :        


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

Applicant’s Issues

 1 .       The Applicant contends the long hours and stress of recruiting caused him to gain weight.
2.       The Applicant contends damage to his lungs from working as a 9/11 rescue worker was the main cause of his weight gain.
3.       The Applicant contends his discharge was inequitable since it was one incident in almost ten years of service , and his overall i n-service conduct warrants an Honorable characterization.
4.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date: 20 1 2 1129            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 Applicant’s record of service included 6105 counseling warnings. Based on the Applicant’s unsatisfactory performance of duties while assigned to the weight control program, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel but waived his right s to submit a written statement and request an administrative board.

: (Decisional) ( ) . The Applicant contends the long hours and stress of recruiting caused him to gain weight. The NDRB recognizes that recruiting duty is stressful and challenging. Most recruiters, however, remain within Marine Corps height and weight standards and are able to continue to serve as recruiters and pass their Physical Fitness Tests. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he was not afforded ample opportunity to get back within Marine Corps standards. The NDRB determined the Applicant’s long hours and stress of recruiting did not absolve him of his responsibility to maintain proper height and weight standards . Relief denied.

: (Decisional) ( ) . The Applicant contends damage to his lungs from working as a 9/11 rescue worker was the main cause of his weight gain. The Applicant was cleared by competent medical authority and was found fit on 21 June 2004 to participate in a BCP and a Remedial Physical Conditioning Program. The Applicant’s medical issue d oes not absolve him of his responsibility to maintain proper height and weight standards. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable since it was one incident in almost ten years of service , and his overall in-service conduct warrants an Honorable characterization . The Applicant received an Honorable characterization of service for his first two enlistment periods. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his third and current enlistment, the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service in his third enlistment , the NDRB determined the Applicant’s service was honest and faithful but his failure to maintain his weight standard by consistently gaining weight while on BCP negatively impacted his ability to recruit , and the awarded characterization of service was warranted. Relief denied.




4: (Decisional) ( ) . The Applicant contends his subsequent service in the Iowa National Guard and as a U.S. Government contractor in Iraq and Afghanistan is worthy of consideration. 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 . The Board determined by a vote four to one 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.

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 .



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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