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

 ex-Pvt, USMC
Docket No. MD02-00246

Applicant’s Request

The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel closest to New Orleans, LA.  The applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, D.C. area.  The NDRB also advised the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020815.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall change.  The discharge shall change to: HONORABLE/Weight Control Failure - involuntary discharge directed by established directive (no board entitlement), authority: ALMAR 57/93 [CMC 161805ZFEB93].

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Dear Sir:

I am writing this letter to request your assistance in regards to the discharge I received on December 8, 1993.  This matter has been the source of several years of unrest and personal dissatisfaction.  I am requesting that you select my case for consideration.  I have had to live with this very troubling and unclosed issue in the back of my mind.  The pride I felt in being a MARINE was shattered when I was forced out of service by circumstances that I feel I was not equipped to grasp and comprehend.  I gave the Corps years of dedicated service and combat duty.

I respectfully request that you find me favorable for your consideration.  I feel I was not treated justly or fairly.  The reason for my discharge was not just.  I feel I was the victim of a personal vendetta spearheaded by my then commanding officer.  While I was being processed, I was not made fully aware of the seriousness of the matters before me and I was not advised of my legal rights nor allowed to exercise those rights.  I am merely asking that you would review my particular case to ensure that all the proper rules governing military discharges were followed.  There are several issues I would like to address:

1.  Box 15a of my DD 214 is marked incorrectly.
2.  I was not afforded any legal counsel.
3.  I was the target of an unfair racial attack.
4.  I was subjected to a hostile work environment.

I have several witnesses who were in the same unit when the above issues were occurred.  My witnesses have been contacted and are willing to give statements or answer any questions concerning this matter.

I am compelled to have closure to this matter in order for me to go forward with my life.

In closing, I would like to thank you for all of your time and consideration in this matter.  I hope to hear from you soon.

Should you require further information or would like to discuss this matter with me further, please do not hesitate to give me a call.

With best regards, I am

Sincerely, (Signed by applicant)

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		881021 - 890606	COG

Period of Service Under Review:

Date of Enlistment:  890607		Date of Discharge:  931216

Length of Service (years, months, days):

	Active:    04  06  10
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  73

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (8)		Conduct:  4.5 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, GCM, NDSM, SSDR, KLM, SWASM (w/2 Stars)

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Weight Control Failure - involuntary discharge directed by established directive (no board entitlement), authority:  ALMAR 57/93 [CMC 161805ZFEB93].

Chronological Listing of Significant Service Events:

920225:	Counseled for deficiencies in performance and conduct, specifically, financial responsibilities.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

921222:	Credentialed Health Care Provider:  Weight not due to pathological disorder.  Recommend loss of 3 pounds per month and a total of 18 pounds within 6 months is a realistic goal.

930106:	Applicant placed on the command's weight control program.

930106:	Counseled for deficiencies in performance and conduct, specifically, failure to meet Marine Corps weight standards.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930224:	Counseled for unsat progress on weight control program:  Weight as 219 pounds, body fat as 21.5%.

930330:	Counseled for deficiencies in performance and conduct, specifically, failure to conform to Marine Corps personal grooming standards, self-discipline and military presence.  Corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930430:	Administratively reduced due to professional incompetence as it pertains to conforming to Marine Corps weight standards.

930507:	Counseled for unsat progress on weight control program:  Weight as 205 pounds, body fat as 18.9%.
.
930525:	Eligible but not recommended for promotion to Lance Corporal for the 9306 promotion month because of weight control.

930728:	Counseled for unsat progress on weight control program:  Weight as 213 pounds, body fat as 18.5%.

930922:	NJP for violation of UCMJ, Article 123:  did commit forgery of a Visitor's Pass.
Awarded reduction to E-1 (suspended for six months), restriction and extra duties for 30 days.  Appeal submitted on 930926.  Appeal denied 931020.

931019:	Counseled for unsat progress on weight control program:  Weight as 222 pounds, body fat as 24.3%.

931019:	Applicant notified of intended recommendation for discharge under honorable conditions (general).  The factual basis for the recommendation was failure to conform to weight standards.

931022:	Applicant advised of rights and having consulted 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 and to submit a statement.

931022:	NJP imposed and suspended for 6 months is hereby vacated and punishment is ordered executed.

931026:	Applicant's statement.

931027:	Commanding Officer recommended discharge under honorable conditions (general).  The factual basis for the recommendation was due to unsatisfactory performance, specifically failure to conform to weight standards and achieve a weight goal of 197 pounds.  Commanding Officer’s verbatim comments:  "The subject named Marine was provided every opportunity under the reference to respond to the separation proceedings and returned acknowledgment on 26 October 1993 after having consulted with counsel.  His response plainly indicates he no longer desires to serve.  During his last NJP proceeding he stated he wants "out of the Marine Corps."  His further service only fills a "boat space" which could be available for a Marine who wants to continue to serve.  I emphatically recommend an immediate discharge for Private Y_ (applicant)." 

931110:	SJA review determined the case sufficient in law and fact.  

931112:	GCMCA [CG, Marine Reserve Force] directed the applicant's discharge under honorable conditions (general) by reason of weight control failure. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931216 under honorable conditions (general) due to weight control failure (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 but not equitable (C and D).

Issue 1.  The Board found nothing to substantiate the applicant’s claims that he was denied counsel, and the subject of racism and a hostile work environment.  However, the Board discerned an inequity in that a Marine discharged by reason of weight control failure must have his characterization of service determined in accordance with reference [A] below.   Accordingly, the applicant warrants an honorable characterization of service due to his average proficiency and conduct markings.  Relief is therefore granted.

The Board directed the correction to the applicant’s DD214, Block 15a, as requested.

Pertinent Regulation/Law (at time of discharge)

A.  ALMAR 57/93 [CMC 161805ZFEB93] revised enlisted separation policy for weight control failure.  It cancelled paragraph 6206.1 of the Marine Corps Separation and Retirement Manual.

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 “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