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USMC | DRB | 2015_Marine | MD1500967

Original file (MD1500967.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20150407
Characterization of Service Received:

Narrative Reason for Discharge:
Reenlistment Code:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20080401 - 20080622     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080623     Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20121011      Highest Rank:
Length of Service: Year(s) Month(s) 19 Day(s)
Education Level:         AFQT: 70
MOS: 6276
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol

Periods of UA/CONF:

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20110225:      For failure to have written lessons ready within the allotted time. “I was counseled on 23 August 2010 and 28 September 2010 by MSgt T___ and was directed to have all of my aircraft systems lessons written by 24 Nov 2010. I failed to meet that deadline and was unable to give any lessons. By 2 February 2011 I had only completed and given one lesson out of eight.”

- 20120118:      For assignment to the Marine Corps BCP.

- 20120622:      For your performance while assigned to the Marine Corps BCP. To date, you have not met your weight/body composition reduction goals. However, you have lost 31 lbs and 5 percent body fat since assignment on 17 Jan 2012.

- 20120812:      For failure to comply with the Marine Corps BCP for the second time.

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Types of Witnesses Who Testified

         Expert:          Character:

Pertinent Regulation/Law

A. Paragraph 6215, WEIGHT CONTROL FAILURE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 his discharge was the result of his inability to meet USMC weight restriction and that it did not hinder his ability to perform duties or assignments.

Decision

Date: 2015625 Location: Washington D.C. Representation:

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 governmental affairs 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 discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included four 6105 counseling warnings. Based on the Applicant’s failure to adhere to the Marine Corp’s physical standards, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, but exercised his right to submit a written statement and request a review by the General Court-Martial Convening Authority.

: (Decisional) () . The Applicant contends that his discharge was the result of his inability to meet USMC weight restriction and that it did not hinder his ability to perform duties or assignments. Applicable regulations state that characterization of service for administrative separation due to Weight Control Failure will be Honorable or General (Under Honorable Conditions) as warranted by the member’s service record. The Applicant had four 6105 counseling warnings during his time in service. Three of the retention warnings were directly attributed to the Body Composition Program (BCP) and one was due to his inability to complete written lesson plans within the allotted time. Additionally, the official record of service has comments from the Command Officer Marine Aerial Refueling Squadron in the notification of separation dated 20120822, stating that the basis for separation was due to the Applicant’s “apathy toward the BCP. While assigned to the BCP you were given a target BC% of 18% but upon completion of the program your body fat percentage ended at 28%.” Furthermore, in the recommendation for administrative separation dated 20120917 from the Commanding Officer Marine Aerial Refueling Squadron, it states that “This Marine has performed the duties of an operations clerk for the last 24 months due to his medical inability to obtain an up chit in order to participate in flight duties as a crewmaster. He did not deploy in our squadron or meet the requirements within his MOS to continue flight …. His average marks in service were 4.2/4.2 and he has no personal awards. This meets the criteria for General (under honorable conditions) Discharge IAW with REF (a).” Reference (a) refers to the MCO P1900.16F (MARCORSEPMAN). Based upon an exhaustive review of the records, nothing indicates that the Applicant’s discharge characterization of service was in any way inconsistent with the standards of discipline in the United States Marine Corps. Although the Applicant may feel that he served honorably, the NDRB determined that the General (Under Honorable Conditions) characterization of service was proper. 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 . 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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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USMC | DRB | 2015_Marine | MD1500967

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