ex-, USMC
MD07-00232

Current Discharge and Applicant’s Request

Application Received:  20061213 		Characterization Received:  
Narrative Reason:  UNSATISFACTORY PERFORMANCE 		  Authority:  MARCORSEPMAN 6206

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Ankle injury prevented weight loss.
			2. Post-service conduct.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  UNSATISFACTORY PERFORMANCE.

Date:  20070920  			       Location:  Washington D.C.  

Discussion

Issue 1 ().  When a Marine’s performance and conduct meet acceptable standards, it is appropriate to characterize that service as honorable.  Characterization of service as general (under honorable conditions) 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 assignment weight control and body composition program, failure of a physical fitness test, administrative reduction for incompetence, and nonjudicial punishment (NJP) for violations of Articles 86 and 91 of the UCMJ.  The Board carefully reviewed the Applicant’s record and determined that his ankle injury was recognized by the command and competent medical authority, and was not a bar to his successful participation in his weight loss program.  Undoubtedly, the injury made losing weight more difficult for the Applicant than would otherwise have been the case; however, the evidence does not support the conclusion that the Applicant, with more diligent effort, could not have accomplished his weight loss goals.

Issue 2 ().  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.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant provided evidence of continuing education as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of a verifiable employment record, documentation of civic and community service, and certification of non-involvement with civil authorities.  After complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and the evidence of post-service conduct did not mitigate the conduct which precipitated the discharge.

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 that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19990610 - 19990719  		Active:   	

Period of Service Under Review:
Date of Enlistment: 19990720	    Years Contracted:  ; Extension:    		Date of Discharge:  20031212
Length of Service:  04  Yrs  04  Mths  23  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  82	MOS:  2621  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	4.2(14)/4.2(14)	Fitness reports:   
Awards and Decorations (per DD 214):  MARINE CORPS GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS MAST, LETTER OF APPRECIATION (4), RIFLE MARKSMAN BADGE

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

2000xxxx:	Medical entry.  Reason for visit:  Shin pain, right and left, for 1 month.
	Assessment:  shin splints.
	Plan:  Ice, (illegible)

20010423:	Medical entry.  Reason for visit:  Podiatry consult, pain all across anterior right ankle and less so on left.
	Assessment:  Possible capsular impingement – arthralgia, shin splints.
	Plan:  Naprosyn, offered light duty (Applicant declined).

20011128:	Medical entry.  Reason for visit:  Bilateral ankle pain running and walking, worsening since July 2000.
	Assessment:  Possible impingement/pronation.
	Plan:  Podiatry consult, new motion control shoes.

20020509:	Medical entry.  Reason for visit:  Ankle pain x2 days, inverted left ankle jumping while playing catch.
	Assessment:  10 left ankle sprain.
	Plan:  X-ray in am, motrin, Ace wrap, crutches for non-weight bearing.

20020729:	MARCORSEPMAN 6105 counseling for failing PFT and not being within height and weight standards.  

20020801:	Applicant assigned to Body Composition Program (BCP) with goal of losing 8 pounds and 5 percent body fat.

20020801:	Applicant assigned to remedial physical fitness program.

20021206:	Body Composition Program evaluation:  Applicant has lost 0 pounds and 1 percent body fat since being placed on the BCP on 20020801.

20021211:	Applicant to limited duty.  Limitations:  No humping, force marches, no running, no sports, no ship duty, non-deployable.

20030201:	Applicant extended on BCP for 6 months due to satisfactory progress.

20030206:	MARCORSEPMAN 6105 counseling for BCP extension.

20030424:	Medical Record:  Reason for visit:  Maintaining body weight while on limited duty.
	Diagnosis:  Surgery pending “next month” (arthroscopic).
	Recommendation:  Decrease calories.  Increase cardio exercise (difficult due to ankle problems).

20030512:	Applicant has ankle surgery.

20030825:	MARCORSEPMAN 6105 counseling for not meeting weight/body fat reduction goals due to insufficient effort.

20031126:	CO's NJP -- Viol UCMJ Art. 86 (3 specs) - (1) Unauthorized absence 0530-0545, 20031103, (2) Unauthorized absence from 0915-1030, 20031103, (3) Unauthorized absence from 0600-0615, 20031113.
	Art. 91 (2 specs) - (1) Willfully disobey lawful order to perform PT in the prescribed PT uniform, (2) Willfully disobey a lawful order to participate in lawn maintenance.
	Awarded - - RIR (E-2); Restr for (24 days); Extra duties (24 days).
Discharge Process

Date Notified:	20031017
Basis for Discharge:	 DUE TO WEIGHT CONTROL FAILURE
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20031024
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (20031024)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20031024)
SJA review (date):	 (20031203)
Separation Authority (date):	CG, MARINE CORPS BASE HAWAII (20031205)
              Basis for discharge directed:	 DUE TO WEIGHT CONTROL FAILURE
              Characterization directed:	
Date Applicant Discharged:	20031212

Types of 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 P1900.16F), effective 01 September 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.

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