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

ex-PFC, USMC
Docket No. MD01-00531

Applicant’s Request

The application for discharge review, received 010314, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018.  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: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue)  Despite her problems, this former member opines that her service was honest and faithful as evidenced by her commanding officer's recommendation for an honorable discharge.  On this basis, she petitions the Board's relief.

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174c, enclosure (1), Chapter 9, as it pertains to post-service, in assessing the merits of this application.

Documentation

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

Applicant's letter to the Board
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		961120 - 970203	COG

Period of Service Under Review:

Date of Enlistment:  970204		Date of Discharge:  000214

Length of Service (years, months, days):

	Active:  03  00  11
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  14			AFQT:  66

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*		Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge, Pistol Sharpshooter Badge 

Days of Unauthorized Absence:  None 

*No Marks Found

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

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority:  MARCORSEPMAN Par. 6203.2.

Chronological Listing of Significant Service Events:

980203:	Counseled for deficiencies in performance and conduct [assignment to Weight Control Program].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990205:	Physical Evaluation Board (PEB) found applicant fit for full duty.

990405:	Reconsideration of preliminary PEB findings and request for formal PEB hearing denied.

990615:	Counseled for deficiencies in performance and conduct [overweight, current weight is 222 lbs, max weight is 165 lbs].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990813:	Psychology Service - SARD/NMCSD:  Pt referred to this LIP from the SARD Weight Management Program.  Pt describes herself as depressed - sad mood, impaired concentration, negative self-image, irritability (i.e., prescribed Prozac 20 mg q daily) - and very worried that she will not be able to continue her weight loss program after leaving SARD because of lack of perceived support at their command.  Pt describes a history of compulsive eating throughout most of her life, and depression beginning when age 18.  Pt describes being in therapy for several years in her early 20's that reduced her depression and helped her lose weight.  Pt says that she has weighed as much as 254 lbs and as little as 149 lbs.  She weighs 234 lbs at this time.  Pt reports being in weight monitoring program at her command.  She describes using laxatives to control her weight when she was anticipating weigh-ins by her SACCO…….. 
	Assessment:  Diagnosis:  Eating Disorder NOS, Dysthymic Disorder.
	Plan:  Pt to be seen by this LIP next week, have pt practice journaling and using the N/LC each evening and provide pt with reading material from the Solution Program…………..

991115:	Counseled for deficiencies in performance and conduct [failing to show consistent progress while assigned to the weight control/remedial PT program - current weight is 218 lbs, max weight 165 lbs].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

991214:	NJP for violation of UCMJ, Article 123:  did assault a Marine at 1630, 1DEC99; violation of UCMJ, Article 92:  did fail to obey CCO 1630.8B on 1DEC99 by not have automobile insurance.
	Award:  Forfeiture of $242 for seven days pay (suspended for 6 months), restriction and extra duty for 14 days.  Not appealed.

000106:	Applicant notified of intended recommendation for discharge by reason of a physical condition not a disability and the least favorable characterization of service may be General (Under Honorable Conditions).

000106:	Applicant advised of her 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.

000110:	Commanding officer recommended discharge with an Honorable by reason of physical condition not a disability.  The factual basis for this recommendation was based on medical history - shoulder pain, numbness in right shoulder, been overweight for nearly two years and unable to maintain standards and lack of desire to maintain weight standards.  Commanding officer’s comments (verbatim):  "Private First Class (Applicant) is an average Marine who would probably find it a challenge to maintain height and weight standards even if she were completely healthy.  Her constant periods of light duty, ongoing shoulder condition, and lack of desire to maintain the weight standards make her unsuitable for continued service.  Although she could be processed for discharge due to weight control failure, I recommend we give her the benefit of the doubt and attribute her lack of weight control progress to her inability to exercise because of her injury.  Accordingly, I recommend she be discharged from the Marine Corps with a honorable discharge for a physical condition not a disability.

000113:	Counseled for deficiencies in performance and conduct [failure to maintain current Marine corps height and weight standards and lacking in my sense of responsibility to help myself strive to meet those standards during light duty]. which has led to the recommendation for administrative separation.  

000207:	SJA review determined the case sufficient in law and fact.

000207:	GCMCA [Commander, 1stFSSG] advised CMC that applicant's discharge was directed with a General (Under Honorable Conditions) by reason physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000214 with a General (Under Honorable Conditions) due to condition not a physical or mental disability (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The Board found no inequity or impropriety in the fact that the applicant’s immediate chain of command recommended a honorable discharge, but the separation authority decided to award a general (under honorable conditions) discharge.  Less than honorable conditions is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by award of nonjudicial punishment (NJP) for offenses triable by court-martial on one occasion and adverse counseling entries on other occasions.  An upgrade to honorable would be inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  While the NDRB respects the fact that the applicant tried, her service is equitably characterized as being performed under honorable conditions (general).  Relief is not warranted.

Issue 2.  The NDRB is authorized to consider 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.  However, there is no law or regulation that 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 be found to have existed during the period of enlistment in question.  No such error or injustice is evident in the applicant’s service record.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for relief based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  

Pertinent Regulation/Law (at time of discharge)

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95), paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

B.  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.  

C.  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.

D.  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 “afls10.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