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

ex-LCpl, USMC    
Docket No. MD03-00125

Applicant’s Request

The application for discharge review, received 20021024, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance – Failure To Conform to Weight Standards (administrative discharge board not required), authority: MARCORSEPMAN Par. 6206.1.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was improper because I had a knee injury and could not run a PFT, but I did lift weights to maintain my standard.  When I lifted weights my weight was only 7 to 8 pounds over my ideal weight.  I was told by a member in my unit (MALS 16) that I should get a waiver for my weight standard since I was injured and lifting weights also.  At the time I was in my unit denied most waiver request and began to discharge most Marines who was injured or over weight.

    To this day I still can not run and my knees are getting worse, I am only 32 years of age and it is hard to do a standing job.  I request my discharge be changed because I feel it is warranted and I would like to be able to use my G.I. Bill.  I paid into to get a higher education so I can have a productive and meaningful life.

Thank You for your time.  

Documentation

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

Copy of Light Duty Chits (12)
Copy of medical record (11 pages)

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USMCR(J)		890221 - 890324	COG (to change component)
					890325 – 890327	COG

Period of Service Under Review:

Date of Enlistment:  890328		Date of Discharge:  920930

Length of Service (years, months, days):

	Active:    03  06  03 (Doesn’t exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  5

Education Level:  12			AFQT:  59

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (10)			Conduct:  4.2 (10)

Military Decorations:  None

Unit/Campaign/Service Awards: NDSM, GCM, MM, Rifle Sharpshooter Badge

Days of Unauthorized Absence:  9 

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

UNDER HONORABLE CONDITIONS (GENERAL)/Unsatisfactory Performance – Failure to Conform to Weight Standards (administrative discharge board not required), authority:  MARCORSEPMAN Par. 6206.1

Chronological Listing of Significant Service Events:

890710:	Applicant received arch supports, low-dye strapping and heel spur injections to both feet for plantar fascitis.

890828:	Unauthorized absence since 0900 this date.

890906:	Surrendered at 1600 (9 days).

891003:	NJP for violation of UCMJ, Article 86:  Unauthorized absence 0900, 890828 – 1600, 890906.
	Award:  Forfeiture of $250 per month for 1 month (suspended for 6 months), reduction to E-1.  Not appealed.

891020:	Counseled concerning deficiency, specifically, unauthorized absence, advise of assistance available and corrective actions.   Discharge warning issued.

901113:	Retention Warning concerning deficiency, specifically, staying home when sick without proper authority, not going to sickbay for medical chit (missing one day of work unexcused), advise of assistance available and corrective actions.   Discharge warning issued.

901115:	Ortho, Branch Clinic, Tustin:  Provisional Diagnosis:  Ruptured Hemiseus, right knee.  Consider arthroscopy surgery.  Schedule MRI.

901201:	Acknowledged eligibility but not recommended for promotion to LCpl for Month of Dec because of lack of responsibility and inability to lead.

910101:	Acknowledged eligibility but not recommended for promotion to LCpl for the month of Jan because of lack of responsibility and inability to lead.

910131:	MRI – right knee.  Impression:  Minimal Joint Effusion but Otherwise Unremarkable.

910819:	Credential Health Care Provider determined Applicant’s overweight condition not due to a pathological disorder and recommended loss of 2½ pounds a month and a total of 15 pounds within 6 months.  Present HT – 72" and WT – 218 pounds.

910822:	Recorded WT as 221 lbs with 27.7% body fat.

910901:	Acknowledged eligibility but not recommended for promotion to Cpl for the month of Sep 91 because of currently being assigned to the weight control program.

910919:	Recorded WT as 216 lbs with 25.5% body fat.

911001:	Acknowledged eligibility but not recommended for promotion to Cpl for the month of Oct 91 because of currently being assigned to the weight control program.

911003:	Recorded WT as 211 lbs with 23% body fat.

911003:	Retention warning concerning deficiency, specifically, failure to make progress while assigned to weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

911101:	Acknowledged eligibility but not recommended for promotion to Cpl for the month of Nov 91 Promotion Qtr because of currently being assigned to the weight control program.

911121:	Recorded WT as 212 lbs with 20.8% body fat.

920103:	Recorded WT as 213 lbs with 23.7% body fat.

920201:	Acknowledged eligibility but not recommended for promotion to Cpl for the Feb 92 Promotion Qtr because of currently being assigned to the weight control program.

920206:	Recorded WT as 210 lbs with 21% body fat.

920224:	Medical Dept, MCAB, Tustin, CA:  Single 22 year old male requesting light duty chit due to right knee problem.  Pt has had long history of problems with right knee and has been followed by Dr. B_ at Pendleton.  Pt wants Medical Board for knee.  Pending an appointment with Dr. B_, assigned Limited Duty for 15 days.

920228:	Recorded WT as 216 lbs with 26.5% body fat.

920313:	Recorded WT as 211 lbs with 24.6% body fat.

920413:	Recorded WT as 210 lbs with 25.5% body fat.

920414:	Training Officer recommends administrative processing due to failure to meet the Marine Corps weight standards stating Applicant assigned to weight program on 21 Aug 91 and has lost 8 lbs and percent body fat has increased by 3.4 percent.  

920501:	Acknowledged eligibility but not recommended for promotion to Cpl for the May 92 Promotion Qtr because of currently being assigned to the weight control program.

920505:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of unsatisfactory performance of duties.  The basis for discharge is due to failure to conform to Marine Corps weight standards and page 11’s dated 891020, 901113, 901201, 910101 and NJP dated 891003. 

920506:	Applicant advised of his 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.

920603:	Commanding Officer recommended discharge under honorable conditions (general) by reason of unsatisfactory performance due to failure to conform to weight standards.

920729:	GCMCA [CG, 3rd MAW] directed Applicant's discharge under honorable conditions (general) by reason unsatisfactory performance due to failure to conform to weight standards.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920930 under honorable conditions (general) due to unsatisfactory performance due to weight control failure (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).

Issue 1.  The fact that the Applicant was in a limited duty status during much of his enlistment does not make his assignment to weight control and subsequent administrative separation for failure to maintain weight standards either improper or inequitable.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under honorable conditions (general) 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) on one occasion and adverse counseling entries on other occasions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  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.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 890627 until 950817, except for subparagraph 1, which was retroactively changed by ALMAR 57/93, effective 920310.

B.  ALMAR 57/93 (CMC 161805Z FEB 93), REVISED ENLISTED SEPARATION POLICY FOR WEIGHT CONTROL FAILURE.

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