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USMC | DRB | 2014_Marine | MD1401428
Original file (MD1401428.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140708
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)       2008 0304 - 20080323     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080324     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110708      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 48
MOS: 3521
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20080812 :       Article 92 (Failure to obey order or regulation, to wit: engaging in sexual relationship during training with PFC T_ at Camp Devil Dog)
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20080714 :       For violation of Article 92 (Failure to obey order or regulation), violated said order from the Company Commander and 1stSgt C_ on authorized drinking establishments while on liberty from SACo.

- 20100805 :       For your assignment to the Marine Corps BCP. You are advised that failure to take corrective action and meet established weight/body composition standards may result in administrative separation from the USMC for either weight control failure or unsatisfactory performance.

- 20101126 :       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.

- 20110204 :       For your unsatisfactory performance while assigned to the Marine Corps BCP. Due to insufficient effort you have not met your target 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 :        

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 that her weight gain was due to medical reasons.
2.       The Applicant contends she should have received additional time to recover after surgery.
3.       The Applicant contends her command failed to inform her of her options to correct or review her discharge.
4.       The Applicant contends she was not given the opportunity for a PEB/MEB board.

Decision


 Date: 20141106            Location: Washington D.C .         R epresentation : VETERANS SERVICES

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 92 (Failure to obey order or regulation, to wit: engaging in sexual relationship during training with PFC T_ at Camp Devil Dog). Based on the Applicant ’s unsatisfactory performance , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel and submit a written statement .

: (Decisional) ( ) . The Applicant contends that her weight gain was due to medical reasons. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant submitted medical documents showing that she had her gall bladder removed on 29 October 2009 . On 26 July 2010, t he Applicant was initially assigned to BCP. Additionally, her service record shows that that her target weight/body fat reduction goals were prescribed by a medical officer. The NDRB determined that the evidence provided by Applicant does not refute the presumption of regularity that the Applicant was medically screened and cleared to participate in the BCP nor does the evidence show that she was not responsible for maintaining weight/body fat standards. Relief denied.

: (Decisional) ( ) . The Applicant contends she should have received additional time to recover after surgery. The record shows the Applicant was not assigned to the BCP until nine months after her surgery. Furthermore, the records shows that while on BCP, she was given multiple written counselings and ample time to conform to standards. However, the record clearly shows that Applicant failed to make reasonable effort to meet the weight/body fat standards. The Applicant not only failed to make progress while assigned to BCP but actually gained a substantial amount of weight. Her initial BCP weight on 26 July 2010 was 186 pounds and 39% body fat and her weight on 03 March 2011 was 205 pounds and 43% body fat. The NDRB discerned no impropriety or inequity and the Applicant’s separation for her unsatisfactory performance was appropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends her command failed to inform her of her options to correct or review her discharge. The record clearly shows that her command gave her three written retention counselings describing in detail what her deficiencies were and that if corrective action was not taken then it may lead to her administrative separation. The record also shows that the Applicant was properly notified of separation proceedings which explained her rights in detail and the possible outcomes. On 05 April 2011, the Applicant signed and acknowledged her rights to be exercised during separation proceedings. The NDRB determined that the Applicant’s contention is without merit. Relief denied.

4: (Decisional) ( ) . The Applicant contends she was not given the opportunity for a PEB/MEB board. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. Therefore, the NDRB found the Applicant’s issue to be without merit. 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 her 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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