ex-, USMC
MD07-00044

Current Discharge and Applicant’s Request
 
Application Received:  20061010	Characterization of Service:  
Narrative Reason:  	Discharge Authority:  MARCORSEPMAN 6205.1

Applicant’s Request:	Characterization change to:  
		 	Narrative Reason change to:   
	
Applicant’s Issues (as summarized by NDRB):
1.  RE Code change/enlist in Navy
2.  Obtain G.I. Bill
3.  Characterization not warranted.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Basis for Discharge shall  .

Date of Decision:  20070823     			Location of Board:  Washington D.C.

Discussion

Issue(s) 1 - 2:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 3 ().  When the service of a member of the U.S. Marine Corps has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service as honorable.  When a member is involuntarily administratively separated, honorable is appropriate only if the Marine’s service, notwithstanding the basis for separation, is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general 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 was marred by 3 retention warnings and a failure to meet Marine Corps weight standards.  The evidence in the record supports the conclusion that the Applicant, although injured and on limited duty during part of the time she was assigned to the weight control program, did not do her utmost to adhere to the nutritional and fitness training regimes available to, and required of, her to meet her weight goals.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, falls short of that required for an upgrade of her characterization of service to honorable.      

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service

Prior Service:  Inactive: USMCR (DEP)  19960311 - 19960610  		Active:   
Period of Service Under Review:
Date of Enlistment:  19960611	Years Contracted:  ; Extension:   	Date of Discharge:  19990315
Length of Service:  02  Yrs  09  Mths  05  Dys  (does not exclude lost time)	Lost Time:    
Education Level:  	Age at Enlistment:  	AFQT:  51	MOS:  2531
Highest Rank:  	Proficiency/Conduct marks (# of occasions):  4.1(6)/4.0(6)
Awards and Decorations (as listed on the DD Form 214):  SEA SERVICE DEPLOYMENT RIBBON, MERITORIOUS MAST, RIFLE MARKSMAN BADGE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19970415:	Medical Entry:  Reason for visit:  Body fat measurement and weight evaluation.
	Assessment:  Body fat 30.6%, weight 157. 
	Recommendation:  for alternate weight must see medical officer.

19970520:	Assigned to weight control program.  [Extracted from Unit Diary dated 19980917]

19970523:	Applicant reported to BAS for body fat measurement.  Body fat:  30.0%.
	Recommend 2-3 pounds loss a month for a goal loss of 16 pounds at 6 months.  Reevaluate 2 month intervals.

19970609:	MARCORSEPMAN para 6105 counseling for failure to maintain weight standards, with goal of of 142 pounds by 19971206.

19970611:	Medical Entry: Reason for visit:  Managing Your Weight Class.  
	Assessment:  Weight, 157 pounds.
	Plan:  High CHO, low fat diet.  Minimum of 2 liter of water intake per day.  Aerobic exercise 3 x 5 per week.  Regular follow-up by command/unit personnel.

19971208:	Medical Entry:  Reason for visit:  Body fat measurement and weight evaluation.
	Assessment:  making progress on weight loss regimen.  Body fat 28.1%, weight 152. 
	Recommendation:  continued weight loss program of 2 pounds a month, counseled re role of diet/exercise in weight loss plan.

19980225:	Medical Entry:  Reason for visit:   Second time on weight control.
	Assessment:  Current weight:  161.  Maximum weight:  142.  
	Recommendation:  3 pound monthly weight loss over 6 month course, help body fat percentage of 26%.  Increase aerobic exercise to at least 30 minutes 5 times a week.  Information on low fat-low chol diet given.
	Recommend weight management class (info given).

19980624:	Medical Board Report:  Applicant to limited duty for 6 months due to diagnosis of sacroiliac joint strain.  S/P:  compression fx.  Limitations are:  No forced marches, running, lifting more than 10 pounds, contact sports.

19980828:	MARCORSEPMAN para 6105 counseling for failure to meet weight standards.  Advised being processed for administrative separation.

19980923:	Medical Entry:  Follow up:  weight control program, desires nutrition counseling.
	Assessment:  Failure to progress on weight control program +20 pounds/6 months, min PO, aerobic exercise 5 x 1 wk; no sxs tsh WWL 4/95
	Plan:  Nutrition counseling consult.  Information given.

19981006:	Naval Hospital Camp Pendleton, Semper Fit 2000 Weight Management Course, Session 1.
	Diagnosis: Overweight.  Recent weight gain 20 pounds.  Current Weight, 172 pounds.  Percent Body Fat, 29.
	Assessment: Requires approximately 2400 calories per day for weight maintenance based on 14 calories per pound present weight.  Can decrease intake to 1400 calories per day to lose 2 pounds per week.  Recommended weigh loss is 1-3 pounds per week, eat 3-5 times per day to maintain a higher metabolic rate.
	Plan:  Complete 6 day food/activity log for next session.

19981013:	Naval Hospital Camp Pendleton, Semper Fit 2000 Weight Management Course, Session 2.
		Assessment:  Decrease soda.  Decrease fast food late at night.

19981027:	Naval Hospital Camp Pendleton, Semper Fit 2000 Weight Management Course, Session 3.
		Assessment:  Met goals of Session 2.

19990126:	MARCORSEPMAN para 6105 counseling for failing weight control.  Advised being processed for administrative separation.

19990201:	Counseling for failure to be at the appointed place of duty on 19990111 at 0530 the area 13 pool for company remedial physical training program.  Warned that recurrence will result in disciplinary action.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					NOT FOUND IN RECORD
	Basis for Discharge:
	Least Favorable Characterization:	
	CO’s Intended Recommendation:	
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
SJA review (date):				NOT FOUND IN RECORD
Separation Authority (date):	NOT FOUND IN RECORD
	Basis for discharge directed:		
	Characterization directed:			 
Date Applicant Discharged:			19990315

Additional Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       

Pertinent Regulation/Law

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 to 31 August 2001.

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.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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