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USMC | DRB | 2012_Marine | MD1201212
Original file (MD1201212.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120503
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)       19951229 - 19961022     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19961023     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000203      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 35
MOS: 1143
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

Awards and Decorations ( per DD 214):     

Period of CONF :

NJP:

- 19970815 :       Article (Absence without leave, from appointed place of duty, Field Day at 1745, 19970812)
         Awarded: Suspended: ($524.00 for 1 month) (15 days)

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 19970815 :       For violation of UCMJ Article 86 for unauthorized absence from appointed place of duty along with your im maturity and lack of judgment.

- 19981102 :       For overweight (current weight 231 lbs. /20% bodyfat, max weight by MCO 6100.10B is 197 lbs. /18% bodyfat ) .

- 19990 524 :       For overweight ( current weight 2 43 lbs . /2 3 % bodyfat, max weight per MCO 6100.10B is 197 lbs. /18% bodyfat ) .

- 19991209 :       For misuse of government computer.








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 P1900.16E), effective 18 August 1995 to 31 August 2001.
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 counseling and NJP for the same violation of Article 86 is do u ble jeopardy and improper.
2.       The Applicant contends he was improperly counseled and was under medical care during the administrative separation process.

Decision

Date : 20 1 3 0307            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 Code of Military Justice (UCMJ): Article 86 ( Absence without leave , less than 24 hours). The Applicant was assigned to the Marine Corps weight control program for not meeting weight control standards. He successfully made progress and was removed from the program , however, he again failed to maintain standards and was placed back on the program. Based on his failure to maintain Marine Corps standards for weight control, 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 submit a written statement . The Applicant was not entitl ed to an administrative board.

: (Decisional) ( ) . The Applicant contends his counseling and NJP for the same violation of Article 86 is double jeopardy and improper. Per Marine Corps regulations, i t is not improper for the Applicant’s command to punish him for a violation of the UCMJ and also counsel him at the same time that future violations of the UCMJ may result in punishment or administrative action such as separation . These are two distinct actions that are allowable for the same incident, and d ouble jeopardy does not exist in this case. The Applicant’s contention is also irrelevant to the facts of his discharge for U nsatisfactory P erformance in maintaining Marine Corps weight standards. Also, the Applicant did not meet the requirements to be awarded a Good Conduct Medal, which requires three consecutive years of misconduct-free service. During the Applicant’s 3 years, 3 months, and 11 days of service, he had an NJP and four retention warnings. Relief denied.

: (Decisional) ( ) . The Applicant contends he was improperly counseled and was under medical care during the administrative separation process. Two of the Applicant’s four 6105 retention warning counselings pertain to weight control failure, which is described under paragraph 6215 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). Per the MARCORSEPMAN, a paragraph 6105 retention warning counseling is used to counsel a Marine on deficiencies , to include weight control failure, that could lead to administrative separation if not corrected . On 28 September 1999, the Applicant’s commanding officer notified him of administrative separation processing per paragraph 6206.5 of the MARCORSEPMAN for Un satisfactory P erformance of duties for failure to maintain Marine Corps standards for weight and body composition. While he could have recommended discharge per paragraph 6215 (Weight Control Failure), his command determined Unsatisfactory Performance was more appropriate. The NDRB reviewed the Applicant’s DD Form 293 statement and the statement he wrote to his commanding officer on 12 October 1999 after being notified of administrative separation processing and determined his medical problems and justifications did not mitigate his ability to meet Marine Corps weight and body composition standards. His command acted properly and in compliance with regulations and Marine Corps orders. The Applicant’s discharge was proper and equitable. 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 15 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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