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

  ex-PFC, USMC
Docket No. MD03-01297

Applicant’s Request

The application for discharge review was received on 20030723.  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 the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514.  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

Applicant’s issues, as stated on the application:

1.  “My discharge was unfair because the USMC kept me around for over 5 years because they needed me, then they discharged me 10 months before my EAS.  They overlooked my weight problem for 5 years, and then all of a sudden, they made it an issue & discharge me.”

Additional issues submitted by Applicant’s representative (AMERICAN LEGION):

“2.  (Equity Issue) This former member further 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

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

Copy of DD Form 214
Letter from Applicant
Criminal record check (2 pp.)

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USMCR(J)		941027 - 941213	COG

Period of Service Under Review:

Date of Enlistment:  941214		Date of Discharge:  000204

Length of Service (years, months, days):

	Active:    05  01  22
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  94

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (9)			Conduct:  3.9 (9)

Military Decorations:  None

Unit/Campaign/Service Awards: NDSM, 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:

950608:	Counseled concerning deficiency, specifically, lack of self-discipline and poor judgment, advised of assistance available and corrective actions.   Discharge warning issued.

951013:	Counseled concerning deficiency, specifically, failure to report for special PT on 3 occasions, advised of assistance available and corrective actions.   Discharge warning issued.

960426:	Counseled concerning deficiency, specifically, driving while on a state suspension, advised of assistance available and corrective actions.   Discharge warning issued.

960619:	Counseled concerning deficiency, specifically, failure to conform to USMC weight/personal appearance standards (height 71”, weight 230lbs.), advised of assistance available and corrective actions.   Discharge warning issued.

961122:	Counseled concerning deficiency, specifically, failure to conform to USMC weight/personal appearance standards, advised of assistance available and corrective actions.   Discharge warning issued.

970124:	Credentialed Health Care Provider determined that Applicant's physical condition is fit for participation in physical exercise program.

980124:	Medical Doctor: Applicant's physical condition is not due to a pathological disorder, fit for participation in physical exercise program, and recommend loss of 6 pounds per month and a total of 36 pounds within six months is a realistic goal. 

980128:	Operations Officer comments: First assignment to weight control was 950724-951114, second assignment was 960613 to present.  With a weight goal of 197lbs., Applicant’s weight on 980112 was 274lbs.  Results of thyroid testing are within the normal range.  Based upon Applicant’s weight gain, it is readily evident that Applicant has not made a reasonable effort to conform to Marine Corps Height and Weight Standards.  Administrative separation is recommended.

980202:	Applicant granted six month extension on weight control program.

980601:	Counseled concerning deficiency, specifically, failure to conform to USMC weight/personal appearance standards since 9606.  Program was improperly administered.  Applicant was advised that he was to meet a goal of 233lbs. or 18% body fat six months from 980202.  Advised of assistance available and corrective actions.  Discharge warning issued.

980930:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

981031:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

981130:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

981231:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

990114:	Counseled concerning deficiency, specifically, failure to comply with duties as powerline fire bottle NCO, advised of assistance available and corrective actions.   Discharge warning issued.

990131:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

990211:	Completed formal BUMED approved weight management outpatient program at ARC, Jacksonville, NC.

990228:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

990331:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

990430: 	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

990530:	Counseled concerning deficiency, specifically, failure to make progress while assigned to Weight control program, advised of assistance available and corrective actions.   Discharge warning issued.

990720:	Counseled concerning deficiency, specifically, driving while on a base suspension, advised of assistance available and corrective actions.   Discharge warning issued.

991119:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of unsatisfactory performance of duties.  The basis for discharge is unsatisfactory performance while assigned to the weight control program, Applicant does not qualify for separation based upon weight control failure, because he did not make reasonable effort to conform to Marine Corps height/weight standards by adhering to the regimen prescribed by an credentialed health care provider (ACHCP).  Applicant's maximum weight allowed is 197 pounds.  As of 990819, his weight was 259 pounds.

991119:	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.

991119:	Commanding Officer recommended discharge under honorable conditions (general) by reason of unsatisfactory performance of duties while assigned to the weight control program.

000111: 	SJA found the case sufficient in law and fact.

000111:	GCMCA [CG, 2d MAW] advised the Commandant of the Marine Corps that the Applicant's discharge was directed with a general (under honorable conditions ) by reason of unsatisfactory performance of duties while assigned to the weight control program.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000204 under honorable conditions (general) due to unsatisfactory performance while assigned to the weight control program (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.  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 adverse counseling entries, failure to make satisfactory performance while assigned to a weight control program, and a conduct evaluation average that is below the standard required for honorable service.  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.  The Board found no inequity in comparing the weight standards in effect during the time of the Applicant’s service to those now in effect.  The fact that the Applicant completed over five years on a six year contract does not mitigate his unsatisfactory performance.  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.

Issue 2.  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 P1900.16E), 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