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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01570

Applicant’s Request

The application for discharge review was received on 20050922.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated Civilian Counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060726.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the characterization of the discharge shall be changed and 3 to 2 that the reason for discharge shall remain the same.  The discharge shall be changed to:  HONORABLE /UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.5, Separation Code “JHJ4.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My proficiency and conduct marks of Document 2 page show marks 4.5 for proficiency and 4.4 for conduct.  These marks would qualify me for an Honorable Discharge pursuant to the Marine Corps Separation Manual.  These marks indicate hard work and dedication to the Marine Corps.  As shown by Document 1 and 2, my awards in service are Good Conduct medal, Certificate of Commendation, 2 letters of appreciation, National Defense Medal, Sea Service Deployment Ribbon and Rifle Marksmanship Badge.  As shown by Document 3, I fought a weight problem before and during my service in the Marine Corps.  I believe Document 4, which shows my efforts to save a little girls life, shows I have continued to be an Honorable Citizen.  Document 5 indicates that I am a productive citizen.  Document 6 indicates there is a precedent for upgrading my discharge.”

Documentation

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

Applicant’s DD Form 214 (3)
Cover Letter from Attorney and Counsel at Law J_ A. H_, Esquire, dtd September 12, 	2005
Pages from the Applicant’s Service Record (15 pgs)
Statement from Applicant dtd August 16, 2005
Thank You ltr from C_ W. S. H_, M.D., Ph. D, Chief Executive Officer, National 	Marrow Donor Program dtd May 1999
Letter of Recommendation from R_ M_, dtd September 11, 2003
Letter of Recommendation from LCDR, J_ E. J_, USN(RET), dtd October 21, 2003
NDRB Decisional Document Docket Case # MD03-00052 (8 pgs)
Meritorious Mast Certificate dtd February 20, 1997
Certificate of Good Conduct dtd April 4, 1997
Certificate of Commendation dtd December 10, 1997 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19940319 – 19940403		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940404		Date of Discharge:  19980320

Length of Service (years, months, days):

Active:    03  11  17  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  19 

Years Contracted: 6 

Education Level:  12				AFQT:  87

Highest Rank:  LCpl				MOS:  5942

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (15)			Conduct:  4.3 (15)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Certificate of Commendation, Letter of Appreciation x2, Sea Service Deployment Ribbon 1*, Rifle Marksmanship Badge, Good Conduct Medal.

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:

940319:	Enlistment waiver granted, accession height 72 in and 222 lbs.

940404:	Enlistment waiver granted, accession height 71 ½ in and 220 lbs.

940915:	Weight Evaluation: Weight: 209, body fat percentage: 21.1%. Not due to pathologic condition.  Patient is qualified to participate in remedial physical training.  Fit for full duty.

941027:	Applicant assigned to weight control program.  [Extracted from counseling entry on 950109.]

950109:	Applicant acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of October because of failure to conform to Marine Corps weight standards.  Applicant chose not to make a statement.

950109:	Applicant acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Jan because of assignment to weight control on 941027.  Applicant chose not to make a statement.

950210:	Applicant acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of Feb because of failure to conform to Marine Corps weight standards.  Applicant chose not to make a statement.

950217:	Applicant has consultation with dietician.  Current height 72”, weight 214 lbs.  Applicant advised on dietary and exercise considerations in reducing and maintaining lower body weight.  Applicant advised to make an appointment for individual counselling in one week and return with weight graph food journal. 

950309:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of March because of failure to conform to Marine Corps weight standards.  Applicant chose not to make a statement.

950407:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of April because of failure to conform to Marine Corps weight standards.  Applicant chose not to make a statement.

950418:	Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of May because of failure to conform to Marine Corps weight standards.  Applicant chose not to make a statement.

950502:	Weight Evaluation: Naval Hospital MCAGCC Twentynine Palms CA, height: 72, weight: 202, body fat percentage 26.2%. Not due to pathologic condition. Qualified to participate in remedial physical training. Fit for full duty.

960308:	Branch Medical Clinic, MCAS Futenma, Okinawa, Japan Weight Control Evaluation:  Max Weight: 203.  Present Weight: 222.  
Assessment:  Physically fit to participate in training.
Plan: Dietary Counseling.  Cleared for remedial physical training.

960408:	Applicant assigned to weight control program for 2nd time.  [Extracted from counseling entry on 960408.]

960415:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of May 1996 because of failure to conform to Marine Corps weight standards.  Applicant chose not to make a statement.

960604:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of June 1996 because of assignment to weight control.  Applicant chose not to make a statement.

960719:	Counseling:  Advised of deficiencies in performance and conduct (failure to make satisfactory progress while assigned to the weight control program.  Since my second assignment to Weight Control on 960408, I have not lost 3 pounds per month as specified by the Commanding Officer.  My current weight is 223 pounds, which is 20 pounds above my weight limit of 203 pounds.  My lack of self discipline and initiative coupled with my poor physical condition and a demonstrated poor attitude towards improving my deficiency is a discredit to myself and is contrary to the performance that is expected of a Marine), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961010:	Branch Medical Clinic, MCAS Futenma, Okinawa, Japan Weight Control Evaluation:  Max Weight: 203.  Present Weight: 213.  Does not meet alt weight criteria.
961022:	Counseling: counseled this date concerning the weight control program. (“I [Applicant] am being taken off the weight control program following my second assignment, due to meeting the goals set forth by my Commanding Officer.  However, IAW MCO 6100.10B I realize that weight control is an ongoing program, and my failure to meet Marine Corps standards will be grounds for immediate discharge due to the fact that I have been assigned twice to the program,”) sources of assistance provided, disciplinary and discharge warning issued.  Applicant chooses not to make a statement.

961206:	Applicant deployed from MCAS Beaufort SC to Pucallpa, Peru.

970225:	Applicant returns to MCAS Beaufort SC from deployment.

970312:	Counseling: Counseled this date for third assignment to weight control. (“I [Applicant] further understand that I have been recommended for Administrative discharge due to failing the Marine Corps weight control program two times and being assigned for the third time.”)  Applicant chooses not to make a statement.

970312:	Commanding Officer, Marine Air Control Squadron 2, notifies Applicant that he is assigned to the squadron Physical Training Platoon as a result of not being within Marine Corps height and weight standards.  

970325:	Applicant deployed from MCAS Beaufort SC to Pucallpa, Peru.

970618:	Applicant returns to MCAS Beaufort SC from deployment.

970905:	Applicant submits a Rebuttal Statement to Administrative Discharge to the Commanding General, 2d Marine Aircraft Wing.

970919:	Applicant notified of intended recommendation for discharge by reason of unsatisfactory performance due to unsatisfactory performance of duties while assigned to the weight control program with a characterization of service as general (under honorable conditions).  The factual basis for this recommendation was the Applicant’s unsatisfactory performance due to unsatisfactory performance of duties while assigned to the weight control program.  The Applicant did not made a reasonable effort to conform to the Marine Corps height/weight standards as indicated by insufficient progress during his assignment to the program.

970919:	Applicant advised of rights and having consulted with counsel, elected to provide a written statement and to obtain copies of the documents used to support the basis for the separation.

971105:	Commanding Officer, Marine Air Control Squadron 2, letter to Commanding Officer, Marine Air Control Group 28, reporting the re-evaluation of the Applicant’s weight/body fat.   Height 72”, weight 237, waist 43.5, neck 17.5, body fat 27%, max weight 203.

971105:	Applicant examined by Credentialed Health Care Provider, Branch Clinic, Marine Corps Air Station Beaufort, SC.  Applicant has been reevaluated and found to be over weight.  Not due to pathological disorder.
971106:	Branch Medical Clinic, MCAS Beaufort, SC Weight Control Questionnaire:  Max Weight: 203.  Present Weight: 237.  Target Weight: 203.  Not within Marine Corps/Navy standards for weight.

980109:	Training Officer, Marine Corp Air Squadron 2 assigned applicant to aerobics program. 

980116:	Commanding Officer, Marine Air Control Squadron 2, to Appropriately Credentialed Health Care Provider, Branch Clinic, Marine Corps Air Station Beaufort, SC for medical reevaluation of LCpl M_ S. R_, USMC. Weight: 237.  

980116:	Applicant examined by Credentialed Health Care Provider, Branch Clinic, Marine Corps Air Station Beaufort, SC.  Applicant has been reevaluated and found to be over weight.  Not due to pathological disorder.

980206:	Commanding Officer, Marine Air Control Squadron 2, via the Commanding Officer, Marine Air Control Group 28, recommended to the Commanding General, 2d Marine Aircraft Wing, the Applicant’s discharge by reason of unsatisfactory performance due to unsatisfactory performance of duties while assigned to the weight control program with a characterization of service of general (under honorable conditions).

980212:	Abbreviated Limited Duty Medical Board Report:  Applicant placed on 6 month limited duty after being placed on remedial physical training program and experiencing pain after prolonged running, diagnosis tibial stress fracture.

980212:	Branch Medical Clinic, MCAS Beaufort SC.  Administrative Note: Patient [Applicant] placed on 6 mo LIMDU board this date per Orthopaedic recommendation.  Patient limited to no running, no prolonged standing, no marching.  Patient to follow-up BMC for reevaluation of status on or about 12 Jun 98.

980303:	Commanding Officer, Marine Air Control Group 28, concurs with recommendation of Commanding Officer, Marine Air Control Squadron 2 to discharge the Applicant by reason of unsatisfactory performance due to unsatisfactory performance of duties while assigned to the weight control program with a characterization of service of general (under honorable conditions).

980311:	SJA:  The proceedings have been reviewed and are sufficient in law and fact.  

980311:	GCMCA, Commanding General, 2d Marine Aircraft Wing directed the Applicant's discharge with a general (under honorable conditions) by reason of unsatisfactory performance due to unsatisfactory performance or duties while assigned to the weight control program.

980320:	Administrative Remarks (1070).  Applicant acknowledges by signature:  “I have been informed by my Commanding Officer this date that I am recommended but not eligible for reenlistment, because of unsatisfactory performance and that I will be assigned a reenlistment code of RE-3P upon separation.”

Service Record Book was missing elements of the Summary of Service and contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980320 by reason unsatisfactory performance (A) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Board found that in the Applicant’s case, the characterization of service should have been “type warranted by service record” and 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 any other characterization of his service.  Subsequent to his second assignment to the weight control program, the Applicant was deployed and received a Meritorious Mast for the performance of his duties as an Aviation Radar Repairman during an overseas deployment.  Subsequent to being notified of the Commanding Officer’s intended recommendation to discharge him, the Applicant was deployed in support of a major training exercise and later received a Certificate of Commendation for his performance as Radar Repairman.  Also, the Applicant’s record of service includes an administrative entry, signed by the Applicant on the day of his discharge, stating that the Commanding Officer recommends his reenlistment in spite of his ineligibility.  The Board determined that the Commanding Officer acted properly and in accordance with the applicable Marine Corps Order by recommending the Applicant’s discharge but that the Applicant’s overall record of service was honorable.  Therefore, relief to the character of service is granted.  

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  The Applicant was discharged under the provision of separation authority MARCORSEPMAN par. 6206.5 (Unsatisfactory Performance of Duties), which states that a member may be “separated under this basis for failure to conform to weight standards as a result of apathy or a lack of self discipline.”  On 19961022 the Applicant was counseled that he was being taken off the weight control program following his second assignment, as a result of having met the goals set by his Commanding Officer and he acknowledged by signature that he realized that “ weight control is an ongoing program, and my failure to meet Marine Corps standards will be grounds for immediate discharge due to the fact that I have been assigned twice to the program.”  The Commanding Officer’s notification of intended recommendation for the Applicant’s discharge specified that the Applicant did not make a “reasonable effort to conform to the Marine Corps height/weight standards as indicated by insufficient progress during his assignment to the program.”  Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate. 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 31August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023