ex-, USMC
MD06-01151

Current Discharge and Applicant’s Request:

Application Received:  				20060829
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				MARCORSEPMAN 6203.3
Last Duty Assignment/Command at Discharge:	mcsfco nbk bangor, SILVERDALE, WA

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070719
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS)	
By a vote of 5-0 the Narrative Reason shall remain WEIGHT CONTROL FAILURE

Applicant’s Issues, as summarized by the Board:
1.  Medical issue was the basis for the characterization of service. 
2.  Record of service.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20020204 - 20020512     
Active:   

Period of Service Under Review:
Date of Enlistment:  				20020513
Years Contracted:  				
Date of Discharge:				20051024
Length of Service
	Active:					03  Yrs  05  Mths  12  Dys  (Does not exclude lost time)

Time Lost During This Period:			
	
Education Level:  				15
Age at this Enlistment:  				
AFQT:  						70
MOS:						0331/8152
Highest Rank:					

Proficiency/Conduct marks (# of occasions):		4.3 (7) / 4.0 (7)
Awards and Decorations (as listed on the DD Form 214):  GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, MARKSMAN RIFLE BADGE, MARKSMAN PISTOL BADGE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20031218:	NJP for violation(s) of UCMJ:
	Article 92 (2 specifications):
	Specification 1:  On or about 20031211, fail to obey a lawful general regulation, to wit:  Naval General Regulations dated 19901214, wrongfully possess a firearm, to wit: a loaded Springfield Armory model XD-30 semi-automatic pistol, which was not necessary of performance of his duties.
	Specification 2:  On or about 20031211, having knowledge of a lawful order, to wit:  SUBASEBANGORINST 5530.5A, an order which it was his duty to obey, did violate said order by wrongfully possessing (2) 5.56mm rounds.
	Award:  Forfeiture of $100.00 for 2 months, restriction for 20 days, reduction to E-2 (suspended for 3 months).
	Not appealed.

20031218:	Counseling:  Advised of deficiencies in performance and conduct.  Specifically my recent NJP on 20031218 for Violation of two counts of Article 92 (failing to obey Navy Regulations) and (failing to obey Base Regulations).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20040524:	Counseling:  Advised of deficiencies in performance and conduct.  Your assignment to the Marine Corps Body Composition Program IAW MCO P6100.12.  Your weight and body fat percentage does not meet acceptable Marine Corps standards, and you do not hold a first class physical fitness test score.  Your weight is currently 236 lbs. and your body fat is currently 26%.  Your last PFT was a 226, a 1st class PFT score for your age bracket. You have six months from this date to reduce your weight to 214 lbs. or below and/or reduce your body fat to 18% or below; however you may also raise your PFT to a first class score while maintaining 22% or less body fat percentage within the time period to be removed from the program.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20040524:	Body Composition Program (BCP) Evaluation:  Applicant acknowledged not in adherence with Marine Corps body composition standards and is not eligible for the Physical Performance Evaluation.  Applicant is being assigned to a 6-month BCP as a 2nd assignment.  Applicant directed to meet the following weight reduction goal of 3.6 pounds or a body fat reduction goal of 0.6 percent per month, and a weight goal is 22 pounds and body fat goal is 4 percent. 

20040527:	Body Composition Program Evaluation:  Applicant’s body composition is not due to an underlying cause or associated disease.

20040601:	Body Composition Program (BCP) Evaluation:  Applicant acknowledged not in adherence with Marine Corps body composition standards.  Applicant assigned to the BCP as a 2nd assignment.  Applicant directed to meet the following weight reduction goal of 3.6 pounds or a body fat reduction goal of 0.6 percent per month, and a weight goal is 22 pounds and body fat goal is 4 percent.

20040726:	Counseling:  Advised of deficiencies in performance and conduct.  Concerning your assignment to the Marine Corps Body Composition Program IAW MCO P6100.12.  Your weight and body fat percentage does not meet acceptable Marine Corps standards, and you do not hold a first class physical fitness test score.  Your weight is currently 238 lbs and your body fat is currently 25%.  Your last PFT was a 226, a 1st class PFT score for your age bracket.  You have four months from this date to reduce your weight to 214 lbs, or below and/or reduce your body fat to 18% or below; however you may also raise your PFT to a first class score while maintaining 22% or less body fat percentage within the time period to be removed from the program.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20040924:	Body Composition Program Evaluation:  Applicant’s body composition is not due to an underlying cause or associated disease.

20040926:	Counseling:  Advised of deficiencies in performance and conduct.  Your assignment to the Marine Corps Body Composition Program IAW MCO P6100.12.  Your weight and body fat percentage does not meet acceptable Marine Corps standards, and you do not hold a first class physical fitness test score.  Your weight is currently 245 lbs and your body fat is currently 24%.  Your last PFT was a 226, a 1st class PFT score for your age bracket.  You have two months from this date to reduce your weight to 214 lbs. or below and/or reduce your body fat to 18% or below; however you may also raise your PFT to a first class score while maintaining 22% or less body fat percentage within the time period to be removed from the program.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20041124:	Applicant first assignment to Body Composition Program expiries.

20050104:	Counseling:  Advised of deficiencies in performance and conduct.  Concerning your extension on the Marine Corps BCP.  You have made reasonable progress but have failed to reach your required body composition while on your first assignment to the Program.  Therefore, you have been granted a one-time extension of 6 months to meet the body composition standards set forth in MCO P6100.12.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20050506:	NJP for violation(s) of UCMJ:
	Article 92:  On or about 20050414, was derelict in the performance of his duties in that he willfully failed to report that a goose was killed in the MLA.
	Article 107:  .On or about 20050416, with intent to deceive, make to Staff Sergeant an official statement, to wit:  “I did not have knowledge that any geese had been killed...”
	Award:  Forfeiture of $250.00 for 1 month, restriction and extra duty for 20 days, reduction to E-2.
	Not appealed.

20050506:	Counseling:  Advised of deficiencies in performance and conduct.  Recent NJP on 2005056 for Viol Art 92 (Der of Duty) and Art 107 (FOS).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Advise that he may be administratively processed for discharge due to a pattern of misconduct or minor disciplinary infractions.  

20050603:	Applicant’s Body Composition Program assignment extended for 6 months, expiring 20050524.

20050704:	Counseling:  Advised of deficiencies in performance and conduct.  Your unsatisfactory performance while assigned to the Marine Corps BCP  Due to insufficient effort, you have not met your weight/body fat reduction goals as prescribed by the medical officer.  Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20050615
Basis for Discharge:				WEIGHT CONTROL FAILURE

Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			YES

Date Applicant Responded to Notification:		20050621
Rights Elected at Notification:
Consult with Counsel				
Obtain Copies	  				
Submit Statement(s) (date)				  (20050621)
Administrative Board				

Commanding Officer Recommendation (date):	  (20050728)
Commanding Officer Recommendation (date)	RETENTION  (20050826)
SJA review (date):				NONE FOUND IN RECORD
Separation Authority (date):	COMMANDER, 4TH MARINE EXPEDITIONARY BRIGADE (20051011)
Narrative Reason directed:				
Characterization directed:				GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20051024

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				7
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				2
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation (Describe Below)			0

        Total Number of Pages:				9

Applicant’s Issues as Summarized by the Board:
1.  Medical issue was the basis for the characterization of service. 
2.  Record of service.

Decisional Issues:
The Board accepted Issues 1-2 for consideration.  

Issue 1 (Equity).  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s conduct or misconduct.  In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition.  Relief denied.

Issue 2 (Equity).  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A general (under honorable conditions) discharge is warranted when a member’s service has been honest and faithful but  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 during the current period of service, which forms the primary basis for determining the character of his service was marred by six retention warnings and two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Articles 92, Failure to obey an order, regulation and Article 107, making a false official statement.  Violations of Article 92 and 107 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied. 

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A.  Paragraph 6215, WEIGHT CONTROL FAILURE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001 until Present.

B.  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 V, Para 502, Propriety  and  Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of the UCMJ, Article 92, Failure to obey order, regulation and Article 107, False official statement. 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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