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USMC | DRB | 2012_Marine | MD1201125
Original file (MD1201125.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120420
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)       19950331 - 19950424     Active:            19950425 - 20020702
                                   
Period of Service Under Review:
Date of Current Enlistment: 20020703     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050919      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 66
MOS: 0621 / 8411
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2) GWOTEM (3) MCRR (2) (2) (2) LoA (2) MM (6)

Periods of UA / CONF :

NJP:

- 20021127 :       Article (Failure to obey order or regulation , improper use of a government computer utilizing the I nternet for means not of government use)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040331 :       For failure to maintain standards set forth in MCO 6100.12 , Marine Corps Physical Fitness Test and Body Composition Program Manual. You are being placed on weight control for a period of six months. At the end of the initial six month program , you will be reevaluated and if you meet the standards set forth , you will be removed from the program. If you do not make satisfactory progress , the CO will administer a 6105 counseling entry to reflect unsatisfactory progress and may recommend administrative separation.

- 20040729 :       For your performance while assigned to BCP. Since your initial assignment , you have gained 8 pounds and have also increased in Body Fat by 1%. You are advised that this is a 4 month mark of your initial assignment , and you have not made any progress to meet required height and weight standards.

- 20040917 :       For your performance while assigned to the Marine Corps BCP. You have failed to make any progress and have not met your required body composition to date on your 2 nd assignment to the Marine Corps BCP. You are advised that if you fail to meet required body composition that you will be processed for administrative separation according to MCO P6100.12.


- 20050117 :       For your performance during your six- month extension to the Marine Corps Body Composition Program (BCP). Upon assignment to the BCP on 20040917 , you were 36 pounds overweight and had 29% body fat. Your weigh in on 20050117 resulted in 36 pounds over your max weight and 27% body fat. You have made progress at reduction of b ody fat. Your six-month assignment of BCP is up on 20050317. I encourage you to work harder and make progress and meet your desired weight goals and be removed from BCP .

- 200 5 0317 :       For your unsatisfactory performance during your assignment to a six-month extension to the Marine Corps Body Composition Program (BCP). You are still 26 pounds over your maximum allowable weight and have not made progress and reduced body fat. In accordance with MCO 6100.12 and the Competency Review Board ’ s recommendation signed 20041204, you will be reduced in rank and administratively separated from the Marine Corps .

Administrative Corrections to the Applicant’s DD 214

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

 “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 950425 UNTIL 020702 ”

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 contends his medical condition limited his ability to conduct physical training and thereby contributed to his weight control failure.
 2.       The Applicant contends his administrative board did not possess his medical evaluation (NAVMED 6100/5) dated 30 June 2005 and did not consider medical conditions that limited his physical ability to achieve weight loss.
3.       The Applicant contends his weight control failure does not characterize 10 years of otherwise honorable service.

Decision

 Date: 20 1 3 0221            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. T he 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 C ode of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, improper use of a government computer utilizing the I nternet for means not of government use ) . Based on the Applicant’s unsatisfactory performance of duties while assigned to the Marine Corps Body Composition Program (BCP) , command administratively processed for separation . When notified of a dministrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and request an administrative board . By a vote of 3 to 0, the administrative board found the preponderance of the evidence proved all acts or omissions alleged in the Applicant’s separation notification. By a vote of 3 to 0, the administrative board recommended separation from the Marine Corps. By a vote of 2 to 1, the administrative board recommended separation with a General (Under Honorable Conditions) characterization of service.

: (Decisional) ( ) . The Applicant contends his medical condition limited his ability to properly conduct physical training and thereby contributed to his weight control failure. Additionally, t he Applicant contends his discharge is inequitable , because the administrative board did not posses s his medical evaluation (NA VMED 6100/5) dated 30 June 2005 and did not consider medical condition s tha t limited his physical ability to achieve weight loss . Per the NAVMED 6100/5, dated 30 June 2005, th e Applicant was diagnosed with Medial E picondylitis and Rotator Cuff T endonitis and was placed on his second period of limited duty with the following directive: no running, jumping, climbing, squatting, marching, humping, unit PT, physical fitness test ( PFT ) , sports, martial arts, field duty, rifle range, working parti es, formations, or deployment , and that rehab activities may be performed under supervision of a rehab provider. Previously, on 26 April 2004, the Applicant was diagnosed with Cubital Tunnel Syndrome and placed on his first assignment of limited duty . Per MCO 6110.3 , Marines who are assigned light or limited duty are required to comply with body composition and military appearance standards and may be evaluated f or assignment to the BCP. There is no evidence in the record, nor has the Applicant provided any evidence , that suggests the Applicant’s weight gain was caused by an underlying medical condition or disease, as determined by an Appropriately Privileged Health Care Provider (APHCP). In fact, the record shows that an APHCP certified that the Applicant’s body composition status was not due to an underlying cause or associated disease and that his participation in the BCP and remedial physical conditioning program be continued until BCP assignment expiration. Although the Applicant was on limited duty for an extended period of time due to his medical conditions, his medical conditions do not absolve him of his responsibility to maintain proper height and weight standards. Finally, the NDRB determined his administrative separation board was not materially affected by not seeing his 30 June 2005 medical evaluation. Relief denied.



: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because his weight control failure does not characterize his 10 years of otherwise honorable service. The Applicant received an Honorable characterization for his first enlistment from April 1995 to July 2002. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, t he 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. The Applicant’s commanding officer stated in his recommendation for administrative separation: “Regardless of the remarkable MOS proficiency demonstrated by this Marine, I believe that his continued presence in this command will only serve to undermine good order and discipline by wrongfully influencing other Marines through his utter lack of ambition and motivation, specifically, with regard to his personal appearance and professional example. ” Additionally, the Applicant received NJP for Article 92 ( F ailure to obey an order or regulation, improper use of a government computer utilizing the I nternet for means not of government use). Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted for 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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