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

 ex-LCpl, USMC
Docket No. MD01-00695

Applicant’s Request

The application for discharge review, received 010420, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant designated a member of congress as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that members of congress or their employees do not normally represent applicants and must obtain written authorization from the congressman or elect another representative.  Subsequent to the application and the acknowledgement letter, 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/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The undersigned lost 35 lbs to get into the Marine Corps.  I needed a waiver to enlist due to the dieting & exercising the Marine Corps physical found nitrates in my system.  During my enlistment I steadily re-gained the weight I had lost & was physically unable to keep my weight down..

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

Documentation

Only the service and medical records were reviewed as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USMCR(J)		970417 - 970427	COG

Period of Service Under Review:

Date of Enlistment:  970428		Date of Discharge:  000218

Length of Service (years, months, days):

	Active:    02  09  20
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  55

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (6)		Conduct:  4.4 (6)

Military Decorations:  None

Unit/Campaign/Service Awards: None

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE,  authority:  MARCORSEPMAN Par. 6206.

Chronological Listing of Significant Service Events:

961214:	Entrance physical exam:  HT - 66½ inches, WT - 193 pounds, Build - medium.  Re-measured on 970428 with WT of 189 pounds.

970426:	Waiver of established physical standard due to history of proteinuria granted for enlistment.

990527:	Credentialed Health Care Provider, Branch Clinic Naval Hospital Camp Lejeune:  HT - 67 inches, WT - 205 pounds, Body Fat 20%.  Not within weight standards.  Recommended loss of 5 pounds per month and a total of 30 pounds within 180 days.

990615:	Counseling:  Applicant assigned to the Weight Control Program to correct deficiency of not meeting height/weight standards.  Applicant directed to meet reduction goals of 5 pounds per month or 0.3% body fat per month and weight goal is 175 pounds or 18% body fat.  

990616:	Measured - 205 pounds.

990616:	Applicant acknowledged eligibility not recommended for promotion to Cpl for Jul 99 promotion because of weight control.

9900804:	Measured - 215 pounds.

990817:	Applicant acknowledged eligibility not recommended for promotion to Cpl for Sep 99 promotion because of weight control.

990818:	Measured - 219 pounds.

990921:	Measured - 221 pounds.

990921:	Counseled concerning deficiency, specifically, failure to conform to and maintain minimum established weight and body fat standards for height from 990615 - 990901.  Advised of assistance available and corrective actions.  Discharge warning issued.

991015:	Applicant acknowledged eligibility not recommended for promotion to Cpl for Oct 99 promotion because of weight control.

991101:	Applicant acknowledged eligibility not recommended for promotion to Cpl for Nov 99 promotion because of weight control.

991215:	NJP for violation of UCMJ, Article 86:  on or about 991027, absent himself from his appointed place of duty, to wit:  Brig company Remedial Physical Training.
	Award:  Forfeiture of $275 pay per month for 1 months (suspended for 6 months), restriction and extra duty for 14 days.  Not appealed.

991203:	Applicant acknowledged eligibility not recommended for promotion to Cpl for Dec 99 promotion because of weight control.

991215:	Measured - 216 pounds.

991215:	Credentialed Health Care Provider, Branch Clinic, Naval Hospital, Camp Lejeune:  Pt reexamined and found to be overweight.  Not due to a pathological disorder.

000113:	Measured - 226 pounds.

000113:	Applicant acknowledged eligibility not recommended for promotion to Cpl for Jan 00 promotion because of weight control.

000207:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of unsatisfactory performance of duties.  The basis for discharge is your failure to make a reasonable effort to conform to Marine Corps height and weight standards by adhering to a regimen prescribed by your commanding officer and health care provider.  

000207:	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.

000209:	CO, Hdqtrs & Supp Bn, Camp Lejeune directed the discharge with a general (under honorable conditions) by reason of unsatisfactory performance.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000218 with a general (under honorable conditions) due to unsatisfactory performance due to failure to adhere to weight standards. (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 acknowledged the applicant’s history of being overweight.  However, the Board also considered the applicant’s service record during the time he was assigned to the weight control program.  The applicant gained eleven pounds during the six months he was assigned to weight control.  His PFT score dropped from 220 in 1998 to 186 in 1999.  He received one NJP for missing remedial physical training.  These actions support the command’s assertion that the applicant did not make a reasonable effort to conform to Marine Corps height and weight standards, and warrant discharge under honorable conditions (general).  Relief denied.  

Issue 2.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to Present, states that a Marine may be separated if the Marine is unqualified for further service by reason of unsatisfactory performance.

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