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

 ex-LCpl, USMC
Docket No. MD02-00605

Applicant’s Request

The application for discharge review, received 020402, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity in the characterization of the Applicant’s service.  The Board’s vote was four to one that the character of the discharge shall change and three to two that the narrative reason for separation shall remain the same.  The discharge shall change to:  HONORABLE/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Dear Sir or Madam:

Request my Discharge be changed to Honorable

On April 15, 1999, 1 was involved in a tornado accident in Richlands, NC. (See the newspaper article attached) I was admitted to Onslow Memorial Hospital with severe injuries, I suffered a concussion, broken jaw, fractured wrist, fractured left scapula, and a puncture wound between my left costal ribs.  I was transferred to Naval Hospital Camp Lejeune shortly thereafter, where I underwent reconstructive jaw surgery.  I was also treated by a civilian neurosurgeon for memory loss as a result of my head injury.  I was treated with prescriptive medications for pain and went on convalescent leave for a month.

When I returned to work as a military policeman, the BAS doctor put me on light duty with NO physical training for six months.  The first three months I just answered phones for the front desk.  I was prohibited from performing my regular duties, which included, carrying a weapon and patrolling the base.  After the three months, I was allowed to resume my normal patrolling duties.  However, I was still advised by the BAS doctor not to perform any physical training because I was still recovering from my injuries.  During this time, I was pressured by my superiors to participate in physical training.  Although I was told not to do any strenuous exercise I felt the need to stay up to par with my peers and, therefore, did not object.  This resulted in a reinjury of my scapula.  At the end of the six-month period in which I had not been participating in PT regularly, I was required to complete a Physical Fitness Test (PFT).  I scored a 265 out of a possible 300 and earned a First Class PFT.  However, during the weigh-in, I was identified as being 10 pounds over my maximum weight, per the MCO 6100.10B.

The Battalion S-4 placed me on weight control on March 27, 2000 for what they said was my second time.  However, that is incorrect.  That was the first time I had been placed on weight control. (See attached Page 11 entry from my SRB.)  I was never given the required medical evaluation by the Appropriate Credentialed Health Care Provider {ACHCP) to see if my health and ability would allow me to participate in the physical training and/ or recommended diet per Paragraph 4. of MCO 6100.10B or provided the required letter from the Commanding Officer to assignment of the Weight Control/Distribution Program.  The entries could have been made in JUMPS/MMS on my assignment per MCO P1080.35 but not to my knowledge.

I was given three months to lose the 10 pounds, although I did make some progress, I was unsuccessful in losing the weight by the deadline.  As a result I was discharged from the Marine Corps on May 5, 2000 stating "unsatisfactory performance.", and given a Discharge of General Under Honorable Conditions

I believe there were mitigating circumstances because of my medical condition and the failure of the Command to follow the policy and implementing instructions outlined in MCO 6100.10B.  I do not feel that I was given necessary time to lose the weight given my medical condition and lack of exercise for six months after my injury.

It should be noted that my Proficiency and Conduct marks of 4.7, 4.7 during that period were other than unsatisfactory per the IRAM MCO P1070.12.  Throughout my three-year enlistment my average Proficiency and Conduct marks of 4.5, 4.5.  I also maintained a First Class PFT, Rifle Expert and Pistol marksmanship.  I was awarded the Good Conduct Medal, Overseas Ribbon, and two Letters of Appreciation.  In fact, my peers and immediate superiors rallied to my defense with letters of support to the Commanding Officers of HQ SPT BN, MCB, Camp Lejeune.

In conclusion, I have been out of the military for almost two years and I miss the Corps. everyday.  I had planned on making it a career.  Now that I have a family I would like to upgrade my discharge so that I can obtain a position in law enforcement.  My experience as a military policeman would make me an excellent candidate in law enforcement.  An honorable discharge is required to pursue this career and be a productive citizen.

I thank you in advance for your consideration in this matter.

Sincerely,

Documentation

In addition to the service record (there was no discharge package available), the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Copy of article from newspaper
Medical records (9 pages)
Record of proficiency and conduct markings dated 10/06/99

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR(J)		970114 - 970324	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  970325		Date of Discharge:  000505

Length of Service (years, months, days):

	Active:    03  01  11
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  58

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (7)			Conduct:  4.6 (7)

Military Decorations:  None

Unit/Campaign/Service Awards: OSR, Letter of Appreciation, GCM

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:

000111:	Applicant informed eligible but not recommended for promotion to Cpl for the month of Jan 2000 due to weight control.

000209:	Applicant informed eligible but not recommended for promotion to Cpl for the month of Feb 2000 due to weight control.

000226:	Applicant informed eligible but not recommended for promotion to Cpl for the month of Mar 2000 due to weight control.

000328:	Applicant informed eligible but not recommended for promotion to Cpl for the month of Apr 2000 due to weight control.

000329:	Counseled concerning deficiency, unsatisfactory performance while assigned to the weight control program; specifically, failure to consistently achieve established monthly weight or body fat loss goal.  Advised of specific corrective action included; meeting the monthly weight or body fat goal established by Appropriately Credentialed Health Care Provider through exercise and/or diet.  Assistance in achieving monthly goal is available from section SNCOIC/OIC, Company First Sergeant, Company Commander, Nutrition Management Department, U.S. Navy Hospital, CLNC.  Applicant understood that he had the reasonable period of 991215-000315 to correct his deficiencies.  Failure to take corrective action may result in administrative separation or limitation of further service.

000505:	DD Form 214:  Applicant discharged under honorable conditions (general) by reason of unsatisfactory performance.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000505 under honorable conditions (general) due to unsatisfactory performance (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 that the Applicant was inequitably separated under honorable conditions (general).  In the Applicant’s case, the characterization of service should have been “type warranted by service record.”  A review of the Applicant’s records indicated an honorable discharge was warranted.  The Applicant’s performance and behavior marks were above the standard required for an honorable discharge and there was no adverse information that would have warranted a less favorable characterization.  Therefore, relief is granted.

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 “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