ex-LCPL, USMC
MD07-00259

Current Discharge and Applicant’s Request

Application Received:  20061108	Characterization Received:  
Narrative Reason:  UNSATISFACTORY PERFORMANCE - FAILURE TO CONFORM TO WEIGHT STANDARDS Authority:  MARCORSEPMAN par 6206.1 

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Discharge not based on overall record of service.
			2.  Post service.

Personal Appearance Hearings

NDRB Documentary Review Conducted (date):		     
NDRB Documentary Review Docket Number:	     
NDRB Documentary Review Findings:		

Applicant Testified:  				
Applicant Available for Questions: 			
Witnesses: 					None      
Observers:  					None      

Decision

By a vote of  the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of  the Narrative Reason shall  UNSATISFACTORY PERFORMANCE-FAILURE TO CONFORM                                                  TO WEIGHT STANDARDS.      

Date:  20080123     	Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 (Equity).  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant DID NOT CONFORM TO Marine Corps weight standards.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 some negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred six discharge warnings and a failure to conform to Marine Corps weight and appearance standards.  An upgrade to honorable would be inappropriate.

Issue 2 (Equity).  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 Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s successes to date.  However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature of the Applicant’s service and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19881116 - 19891029  			
Period of Service Under Review:
Date of Enlistment: 19891030	Years Contracted:  ; Extension:  	Date of Discharge:  19930212
Length of Service:  03  Yrs  03  Mths  13  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  78	MOS:  7222  Highest Rank:  LCPL
Proficiency/Conduct marks (# of occasions):	4.5(6) / 4.4(6)	 
Awards and Decorations (per DD 214):  GCM, NDSM, SASM 2/*, SSDR, KLM, NUC, RIFLE EX

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

19881028:	Report of medical examination lists height/weight as 67.5”/162 pounds.  Max weight for 68” is 181.

UNDATED:	Record of military processing lists current height/weight of 68” and 168 pounds.  

19920319:	MARCORSEPMAN 6105 counseling for it has been determined that you are 16 pounds overweight and are therefore not in compliance with the Height/Weight standards set forth in MCO 6100.10.  Discharge warning issued.

19920413:	MARCORSEPMAN 6105 counseling for while participating in the Battalion Weight Control Program you did not achieve your goal weight for the period of 19920323-19920413 by not losing 2.6 pounds and are therefore determined to be making unsatisfactory progress.  Discharge warning issued.

19920608:	MARCORSEPMAN 6105 counseling for while participating in the Battalion Weight Control Program you did not achieve your goal weight for the period of 19920512-19920608 by not losing  7.8 pounds and are therefore determined to be making unsatisfactory progress.  Discharge warning issued.

19920706:	MARCORSEPMAN 6105 counseling for while participating in the Battalion Weight Control Program you did not achieve your goal weight for the period of 19920608-19920706 by not losing 10.4 pounds and are therefore determined to be making unsatisfactory progress.  Discharge warning issued.

19920813:	MARCORSEPMAN 6105 counseling for lack of motivation and attention to duty resulting in frequent tardiness to Bn Remedial PT Program.  Discharge warning issued.

19920831:	MARCORSEPMAN 6105 counseling for while participating in the Battalion Weight Control Program you did not achieve your goal weight for the period of 19920804-19920831 by not losing 15.6 pounds and are therefore determined to be making unsatisfactory progress.  Discharge warning issued.

Discharge Process

Date Notified:	NOT FOUND IN RECORD
Basis for Discharge:	 FAILURE TO CONFORM TO WEIGHT STANDARDS
	
Least Favorable Characterization:	
Commanding Officer’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):	
SJA review (date):	
Separation Authority (date):	NOT FOUND IN RECORD
              Basis for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19930212

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)       

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 920309, except for subparagraph 1, which was retroactively changed by ALMAR 57/93, effective 920310). 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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