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

  ex-LCpl, USMC
Docket No. MD03-01129

Applicant’s Request

The application for discharge review was received on 20030612.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  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: GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (McKenna, Long & Aldridge, LLP):

“1.  Whether the onset of [Applicant’s] diagnosed medical condition, to wit: Hashimoto’s thyroiditis, was a substantial contributing factor in his difficulties controlling weight and should, therefore, justify an upgrade to an Honorable characterization of service.

2.  Whether [Applicant’s] positive performance record justifies an Honorable characterization of service in view of MCO P1900.

3.  Whether the Board should afford leniency and grace to [Applicant], who wishes to have his record of service as manifested by his characterization of service, and who wishes to enjoy benefits under the GI Bill.

4.  Whether all of the circumstances of [Applicant’s] case considered in their totality justify an upgrade to an Honorable characterization of service.”

Documentation

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

Copy of DD Form 214
Memorandum from McKenna, Long & Aldridge, LLP
Eight pages from Applicant’s service record
Five pages from Applicant’s medical record
Letter from M_ C. R_, MD, PC
Curriculum vitae
List of publications
Hashimoto’s thyroiditis description (6 pp.)

PART II - SUMMARY OF SERVICE

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

	Active:     None
	Inactive:  USMCR(J)		950707 - 960225	COG

Period of Service Under Review:

Date of Enlistment:  960226		Date of Discharge:  990310

Length of Service (years, months, days):

	Active:    03  00  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  70

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (7)			Conduct:  4.3 (7)

Military Decorations:  None

Unit/Campaign/Service Awards: CC, MM, LA

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:

970918:	NJP for violation of the UCMJ, Article 92: Disobeyed base order by being found guilty in traffic court for not having motorcycle safety card and failure to register aboard base.
Awarded forfeiture of $244.00 ($144.00 suspended for 60 days).  Not appealed.

980123:	Assigned to weight control program.  Height- 66”, weight- 203lbs.

980424:	Counseled concerning deficiency, specifically, failure to make progress while assigned to weight control program, advise of assistance available and corrective actions.   Discharge warning issued.

980812:	Counseled concerning deficiency.  [Lack of judgment and maturity.] Advised of assistance available and corrective actions.   Discharge warning issued.

980814:	NJP for violation of the UCMJ, Article 86: Fail to go to remedial PT at 0600, 980810; violation of the UCMJ, Article 91: Willfully disobeyed order from GySgt J_ to report for remedial PT.
Awarded forfeiture of $265.00, 14 days restriction.  Not appealed.

981019:	NJP for violation of the UCMJ, Article 86: Fail to go to mandatory cooks meeting at 0800, 981007; violation of the UCMJ, Article 86: Fail to go to PFT at 0615, 981008.
Awarded forfeiture of $265.00, 14 days restriction and extra duty.  No indication of appeal.

981211:	Appropriately Credentialed Health Care Provider (ACHCP):  Applicant's physical condition is not due to a pathological disorder. 

981230:	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 Applicant counseling on 980424 and ACHCP letter dated 981211. 

990108:	Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to make a statement and to obtain copies of the documents used to support the basis for the separation.

990112:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of unsatisfactory performance due to failure to conform to weight standards.

990217:	GCMCA [CG, MCRD/WRR] advised the Commandant of the Marine Corps that the Applicant's discharge was directed with a general (under honorable conditions ) by reason unsatisfactory performance due to weight control failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990310 with a general (under honorable conditions) due to unsatisfactory performance 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 and equitable (C and D).

Issue 1.  On 19981211, a medical doctor determined that the Applicant's physical condition was not due to a pathological disorder.  The Applicant’s stated medical condition and documentation provided does not refute the presumption that the Applicant could have met the USMC weight standards.  Relief denied.

Issues 2 and 4.  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 three occasions 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 is inappropriate.  Relief denied.

Issue 3.  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.  The discharge was proper and equitable.  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 P1900.16E), 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