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USMC | DRB | 2014_Marine | MD1401194
Original file (MD1401194.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140602
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)       20040527 - 20040815     Active:            20040816 - 20070708

Period of Service Under Review:
Date of Current Enlistment: 20070709     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120815      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 07 D a y ( s )
Education Level:        AFQT: 25
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle (2) (2) LoC

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090713 :       For failure to conform to the Marine Corps Body Composition standards. Your current weight is 216 pounds with a body fat percentage of 23.

- 20091130 :       For failure to conform to the Marine Corps Body Composition standards. Your current weight is 219 pounds with a body fat percentage of 23.

- 20100621 :       For your extension on the Marine Corps Body Composition Program (BCP). You have made reasonable progress but have failed to reach your required body composition while on your first assignment to this program as of 14 May 2010. Therefore, you have been granted a one-time extension of 6 months to meet the body composition standards set forth in MCO P6110.3w/ch1.

- 20110707 :      For failure to conform to the Marine Corps body composition standards and assigned to BCP [Extracted from Commanding Officer, Instructor Training Battalion, Notification of Separation Proceedings letter dated 20120503]

- 20110826 :       For failure to conform to the Marine Co rp s Body Composition standards. Your current weight is 224 pounds with a body fat percentage of 27%. Per MCO P6110.3W/CH1 I am being assigned to the Marine Corps Body Composition Program (BCP) as of 20110819.

- 20120110 :       For your unsatisfactory performance while assigned to the Marine Corps BCP . Due to insufficient effort, you have not met your weight/body composition reduction goals.

- 20120224 :       For your 6 month unsatisfactory performance while assigned to the Marine Corps BCP. Due to insufficient effort, you have not met your weight/body composition reduction goals.

- 20120417 :       For your failure to conform to the Marine Corps Body Composition standards. Your current weight is 228 pounds with a body fat percentage of 27. Per MCO P6100.13 w/ch1 you are not eligible for reassignment to the Marine Corps Body Composition Program (BCP). I understand that I am being processed for administrative separation from the USMC for either weight control failure or unsatisfactory performance per paragraphs 6206 and 6215 of MCO P1900.16F.

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 adjustment disorder from his service in Iraq should have been considered a mitigating factor in determining the characterization of his discharge .

Decision


 Date: 20 1 4 1021            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The Applicant stated that he was diagnosed with adjustment disorder related to his combat service in Iraq. The Applicant’s service record documents completion of two deployments to Iraq from September to February 2005 and February to September 2007, conducting combat service support operations in support of Operation IRAQI FREEDOM.

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 his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings . Based on the Applicant ’s insufficient effort while assigned to the Marine Corps Body Composition Program , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant his rights to consult with a qualified counsel and submit a written statement and waived his right to request an administrative board .

: (Decisional) ( ) . The Applicant contends his adjustment disorder from his service in Iraq should have been considered a mitigating factor in determining the characterization of his discharge. In reviewing the Applicant’s service record the NDRB noted that his two Iraq deployments occurred primarily during his first enlistment with only approximately two months of his second Iraq deployment falling within his last enlistment. Each period of enlistment is an independent obligation, and characterization of service is determined for that specific period. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s failure to meet his body composition standards during his extended Body Composition Program assignment period.

The record of evidence shows the Applicant received eight 6105 counseling warnings for his assignment to and failure to make sufficient progress on the Body Composition Program. These entries, spanning two years and nine months from July 2009 to April 2012 clearly demonstrate the Applicant was afforded amply more opportunity to come within standards than the two, six month assignment periods and one six month extension the Marine Corps Body Composition Program order authorizes. Furthermore, both in-service and post-service counseling notes indicate that the Applicant’ s adjustment disorder stemmed from relationship issues with his wife, money, taking care of his children, and coping with stress and not deployment -related issue s. The evidence of record did not show that the Applicant was either not responsible for his weight gain or that he should not be held accountable for his failure to make sufficient progress while assigned to the Body Composition Program. 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 remain 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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