Search Decisions

Decision Text

USMC | DRB | 2014_Marine | MD1401249
Original file (MD1401249.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140617
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)       20081211 - 20090726     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090727     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120816      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 70
MOS: 6492
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle LoA

Periods of CONF :

NJP:

- 20110816 :       Article (Absence without leave) 3 specifications
         Article (False official statements)
         Awarded: Suspended:

SCM:    

SPCM:   

CC:

Retention Warning Counseling :

- 20110512 :       For understanding that I am eligible but not recommended for promotion to Corporal for June promotion period 2011 due to “lack of initiative”.

- 20110525 :       For your first assignment to the Marine Corps Body Composition Program.
         For understanding that I am eligible but not recommended for promotion to Corporal due to my failure to comply with Marine Corps weight/body composition standards.

- 20110816 :       For the following misconduct, specifically, your recent NJP for violation of Articles 86 (X3) and 107 of the UCMJ held on 16 Aug 2011.
         For underst anding that I am restricted from promotion for 6 months from the date of conviction by NJP.



- 20110926 :      For unsatisfactory performance while assigned to the Marine Corps BCP. Due to insufficient effort, you have not met your weight/body composition reduction goals.

- 20111127 :      For failure to comply with the established weight/body composition standards while assigned to the Marine Corps BCP.
         For understanding that I am eligible but not recommended for promotion to Lance Corporal due to my failure to comply with Marine Corps weight/body composition standards.

- 20120210 :      For failure to comply with the established weight/body composition standards while assigned to the Marine Corps BCP.
         For understanding that I am eligible but not recommended for promotion to Lance Corporal due to my failure to comply with Marine Corps weight/body composition standards.

- 20120423 :      For unsatisfactory performance during your fist assignment to the Body Composition Program. You have failed to meet your height, weight and body fat percentage required per 6206 of MCO P1900.16F.

Administrative Corrections to the Applicant’s DD 214

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

          “ MARCORSEPSMAN Par. 6206 ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ .



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

Applicant’s Issues

 1.       The Applicant seeks to improve his employment opportunities.
2.       The Applicant wants to use the GI Bill.
3 .       The Applicant contends his post-service diagnoses warrant an upgrade.
Decision


 Date: 20141030            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 and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 3 specifications ) and Article 107 (False official statements). Based on the Applicant ’s unsatisfactory performance , his 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, submit a written statement .

: (Nondecisional) The Applicant seeks to improve his employment 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.

 : (Nondecisional) The Applicant wants to use the GI Bill. 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.
: (Decisional) ( ) . The Applicant contends his post-service diagnoses warrant an upgrade. The Applicant submitted a copy of his VA claim in which he was assigned a ten percent evaluation for left knee degenerative disease and a 10 percent evaluation for left leg peripheral paresthesia. 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 diagnos e s to be of sufficient nature to excuse the Applicant’s unsatisfactory performance or his misconduct. The Applicant w ould have been medically cleared to participate in the Body Composition Program while in-service. Additionally, his stated medical diagnoses would not absolve the Applicant of his requirements to maintain height and weight standards. Furthermore, the Applicant had adjudicated misconduct for making f alse official statements and three specifications of being absent without leave . Likewise, the Applicant had conduct marks averaging 3.9 which are considered significant negative aspects of his service . The Applicant’s misconduct and low conduct marks on their own would warrant a characterization of no higher than General (Under Honorable Conditions). The NDRB determined that the Applicant’s separation for his unsatisfactory performance was appropriate 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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain UNSATISFACTORY PERFORMANCE. 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

Similar Decisions

  • USMC | DRB | 2011_Marine | MD1101557

    Original file (MD1101557.rtf) Auto-classification: Denied

    Due to (the Applicant’s) Weight Control Failure, he has become a liability for the Battalion, as well as the Marine Corps, and his presence jeopardizes the good order and discipline that the Marine Corps upholds.” On 14 April 2010, after considering the Applicant’s record of service, the chain of command recommendations, and the Applicant’s statement regarding his processing for administrative separation, the Separation Authority directed that the Applicant be discharged from the Marine...

  • USMC | DRB | 2005_Marine | MD0500755

    Original file (MD0500755.rtf) Auto-classification: Denied

    The basis for discharge is the Applicant's failure to meet standards for weight control and body fat composition. Commanding Officer's comments: "Based on Lance Corporal C_'s (Applicant's) failure to meet the Marine Corps Standards for weight control and body fat, it is requested that he be separated from the Marine Corps with a general discharge." The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for...

  • USMC | DRB | 2012_Marine | MD1201652

    Original file (MD1201652.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20060620 - 20070610Active: Period of Service Under Review: Date of Current Enlistment: 20070611Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20110809Highest Rank:Length of Service: Year(s)Month(s)29 Day(s)Education Level: AFQT:53MOS: 5811Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...

  • USMC | DRB | 2014_Marine | MD1401194

    Original file (MD1401194.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2012_Marine | MD1201696

    Original file (MD1201696.rtf) Auto-classification: Denied

    The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety.The Applicant’s record of service included 6105 counseling warnings for unsatisfactory performance on the Marine Corps Body Composition Program (BCP). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is...

  • USMC | DRB | 2008_Marine | MD0801642

    Original file (MD0801642.rtf) Auto-classification: Denied

    The separation processing can be based on one of two paragraphs in the Marine Corps Separations Manual: Paragraph 6215 which is used when the sole reason for separation is failure to meet weight and body fat standards, and the Marine's performance and conduct otherwise conform with established standards; or paragraph 6206 which is used when a Marine is separated for failure to conform to weight standards as a result of apathy or a lack of self discipline.The Applicant’s command, based on the...

  • USMC | DRB | 2014_Marine | MD1401157

    Original file (MD1401157.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Based on the Applicant’s unsatisfactory performance on BCP, command administratively processed for separation. ” 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.

  • USMC | DRB | 2008_Marine | MD0801540

    Original file (MD0801540.rtf) Auto-classification: Denied

    The Applicant contends he is entitled to an upgrade since his Physical Evaluation Board (PEB) was not completed before he was discharged.The Applicant was the subject of a medical board conducted 10 January 2003. The record of evidence shows the Applicant was notified in writing by his Battalion Commander on 12 February 2003 he was recommending the Applicant be discharged with a “General (Under Honorable Conditions)” characterization of service. The Board determined an upgrade would be...

  • USMC | DRB | 2015_Marine | MD1401704

    Original file (MD1401704.rtf) Auto-classification: 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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain UNSATISFACTORY PERFORMANCE. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...

  • USMC | DRB | 2006_Marine | MD0600170

    Original file (MD0600170.rtf) Auto-classification: Denied

    Applicant failed to meet the Marine Corps’ body composition standards and will receive a 6105 counseling entry and be processed for administrative separation.050210: Counseling: Advised of deficiencies in performance and conduct (Failure to meet the Marine Corps body composition standards while assigned to the Marine Corps Body Composition Program (BCP) for the second time. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for...