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

 ex-LCpl, USMC
Docket No. MD00-00694

Applicant’s Request

The application for discharge review, received 000508, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical discharge/medical retirement.  The applicant requested a personal appearance hearing in the Washington National Capital Region.  The applicant listed the Disabled American Veterans as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Minor disciplinary infractions (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6210.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Type of Discharge General vs Honorable

2.  Discharge Procedure according to Marine Corps Directives, I should have been medically discharged/retired as I had been on limited duty for over 1 year.

3.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the corrective action as requested by the FSM of an upgrade of his General, Under Honorable Conditions discharge to Honorable, and / or with disability retirement and placement on the permanent disability retirement list ( PDRL ).

A review of the record reflects that the FSM notes that according to Marine Corps.  Directives, he should have been medically discharged and / or retired due to disability (s) that had been severe enough to place him on limited duty for over a year.  Also he states that due to these disabilities he was over weight, and that this was the initial reason for the separation from service.

He further maintains that the actions of the legal officer, to change his separation by reason of two past non-judicial punishments was impropriations.  He requests the strong favorable statements from his OIC and NCOIC, be reviewed and taken into consideration.  Mr. Broome, also notes several discrepancies with regard to the over weight packet that also need attention and review.

We find it unusual that the FSM would be discharged with a General discharge due to two nonjudicial punishments, that never directly resulted in a Court Martial proceeding.  The records reflect that Mr. Broome had good military service with proficiency marks to match, additionally, there are statements of record from his OIC and NCOIC attesting to his character and recommending that he be given an Honorable discharge.

Granted the FSM was over weight and did not meet the physical standards for the United States Navy, therefore this should have been the reason for separation by means of an Honorable discharge.  We believe that there was an injustice that arose, once the decision was the lack of consideration of the statements of the OIC and NCOIC.  These statements should have had some bearing.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
Statement from applicant
Ninety-one pages from applicant's service/medical record
Copy of weight control weekly progress chart

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USA			860602 - 861019	HON
	Inactive: USMCR(J)		880220 - 880328	COG

Period of Service Under Review:

Date of Enlistment:  880329		Date of Discharge:  930319

Length of Service (years, months, days):

	Active:    04  11  21
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  14			AFQT:  91

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (14)		Conduct:  4.3 (14)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM (2), KLM, SSDR (2), SASM (2), NDSM, GCM, NUC (2), CAR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Minor disciplinary infractions (administrative discharge board required but waived), authority:  MARCORSEPMAN Par. 6210.2.

Chronological Listing of Significant Service Events:

890320:	Counseled for deficiencies in performance and conduct.  [At 0156 on 25 February 1989 the vehicle you were driving was stopped at the Main gate.  During the course of this routine vehicle/ID card check the MP conducting the check became suspicious that you were operating the vehicle soon after having consuming alcohol.  A sobriety test administered to you confirmed his suspicions.  You were then transported to and detained at the MCAS PMO station until you were released into the custody of the MAG-29 GDO.  The GDO then transported you to your barracks.  Your conduct was deficient in this incident in that you chose to "Drink and Drive".  Inability to maintain sufficient funds in my account to cover issuing of personal checks.  Specifically, on 19 February 1989, I wrote a check to Handy Mart for the amount of $7.51 for which I did not have sufficient funds.  Subsequently a warrant was issued by Onslow County on 17 March 1989 for my appearance at the District Court at 0900 on 3 April 1989.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890327:	NJP for violation of UCMJ, Article 86:
Specification: Failed to go at the time prescribed at 0430, 20Mar89.
Violation of UCMJ, Article 107:
Specification: At PSD MAG-29 in that on or about 20Mar89 with intent to deceive, in an official logbook, to wit: that the morning inventory was completed at 0430 and checked out the pistol at 0430 on 20Mar89.
Awarded correctional custody for 30 days, reduction to PFC.  Reduction suspended for 6  months.  Appealed 890328.  Appeal denied 890330.

891127:	Counseled for deficiencies in performance and conduct.  [Loss of an active duty ID card.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900205:	Counseled for deficiencies in performance and conduct.  [Inability to satisfy your financial obligations.  On 891106 you wrote a $100.00 check to the Marine Corps Exchange when you did not have enough funds to cover it.  Because of our busy deployment schedule, you were afforded nearly four months in which to make restitution to the MCX, but you still have not done so.  The MCX has been notified to initiate an involuntary pay checkage to recover its $100.00 plus $19.90 fee.  Specific reason for counseling] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910919:	Medical officer determined physical appearance is not due to pathological disorder.  Current weight is 238 pounds and 30.6% body fat.

911022:	Applicant assigned to weight control program.  Applicant assigned to physical training program.

920218:	Counseled for deficiencies in performance and conduct.  [Substandard performance and non compliance with directives, by not meeting weight reduction goals and in fact gaining weight.  Your current weight is 243 pounds which is 34 pounds over your maximum allowable weight of 209 pounds.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920427:	Counseled for deficiencies in performance and conduct.  [Your second assignment to the weight control program commenced on 911023.  During your transfer, your weight control package was not transferred to MACS-6 and it was not known that you were previously on the program until MACS-6 conducted a weigh-in n 920219.  Additionally, notification of previous assignment appeared on unit diary feedback reports later.   Since you had exceeded the 90 day time period to lose weight, you were given an additional 60 days to show significant progress in your weight reduction plan.  Since 920219 until the present you have lost six pounds total.  Your performance to date has been unsatisfactory, and you have failed to meet both your monthly weight reduction goals and Marine Corps weight control standards.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920507:	NJP for violation of UCMJ, Article 121:
Specification: Stole approximately $4.00 worth of chewing tobacco from Marine Corps Exchange.
Awarded forfeiture of $150.00 per month for 2 months, restriction for 30 days, and extra duties for 15 days, reduction to LCpl.  Appealed 920513.  Forfeiture suspended for 4 months.  No further relief granted.

921109:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of weight control failure and misconduct due to minor disciplinary infractions.

921109:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

921109:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to minor disciplinary infractions.  The factual basis for this recommendation was your failure to meet established weight goals within the prescribed time and your discreditable involvement with authorities during this enlistment as evidenced by two nonjudicial punishments and other adverse entries contained on page 11 of your service record. 

930309:	SJA review determined the case sufficient in law and fact.

930309:	GCMCA [Commanding General, 2d Marine Aircraft Wing] directed the applicant's discharge under honorable conditions (general) by reason of misconduct due to minor disciplinary infractions.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 930319 under honorable conditions (general) for misconduct due to minor disciplinary infractions (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

The Board does not consider issue 1 to be a discussion issue.

 In response to issue 2, the Board found no such Marine Corps Directive in relation to the circumstances of the applicant’s case which would have resulted in a medical discharge.

In response to issue 3, the Board found that the applicant had received counseling for drinking and driving, inability to maintain funds to cover personal checks, loss of ID card, inability to satisfy financial obligations, and for weight control failure.  In addition, the applicant received non-judicial punishment for violation of  UCMJ Article 86 (unauthorized absence), Article 107 (false official statements), and Article 121 (larceny).  While the applicant’s proficiency marks are good, they do not override his misconduct.  The applicant was notified that he was recommended for discharge for weight control failure and misconduct due to minor disciplinary infractions.  The commanding officer’s decision to discharge the applicant for misconduct due to minor disciplinary infractions was well within his authority and prerogative to do.  The decision was found sufficient in law and fact by SJA review and directed by the GCMCA authority.  The Board, after reviewing the applicant’s service record and other evidence presented, determines that no change in the characterization of discharge is warranted.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.  If the applicant believes he is entitled to be placed on the PDRL, he is encouraged to contact the Board for Correction of Naval Records.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, Misconduct, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95. 

B.  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, Article [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023