ex-, USMC
MD07-00270

Current Discharge  and Applicant’s Request

Application Received:  20061220 	Characterization Received:  
Narrative Reason:  UNSATISFACTORY PERFORMANCE 		Authority:  MARCORSEPMAN 6206

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. VA Benefits
			2. Unfair reenlistment code
			3. Unfair characterization of service based on performance

Decision

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

Date:  20071002  Location: 	 Washington D.C.  The Board found that 

Discussion

Issues 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: ().  The Applicant was fully aware of the height and weight standards required for continued service as evidenced by acknowledging thse requirements in a MARCORPSEPMAN 6105 entry dated 19930726.  Medical documentation clearly established that the Applicant’s weight condition was not due to a pathological disorder.  It was after the failure to achieve height/weight standards after the third assignment to the program that the Applicant was administratively separated.  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 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 this contract was marred by two retention warning and the award of nonjudicial punishment (NJP) on one occasion for violation of the Uniform Code of Military Justice (UCMJ) Article 128 (Assault).  An upgrade to honorable would be inappropriate.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE DUTY SERVICE FROM 860408 UNTIL 930510”
	
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19860222 - 19860407  		Active:   	19860408 - 19000514  
Active:   	19900515 - 19930510  
Period of Service Under Review:
Date of Enlistment: 19930511	Years Contracted:  	Date of Discharge:  19960515
Length of Service:  03  Yrs  00  Mths  05  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  34	MOS:  338  Highest Rank:  
Fitness reports:   
Awards and Decorations (per DD 214):  RIFLE SHARPSHOOTER BADGE, NAVY ACHIEVEMENT MEDAL, NAVY UNIT COMMENDATION, MERITORIOUS UNIT COMMENDATION (W/1*), MARINE CORPS GOOD CONDUCT MEDAL (W/1*), SOUTHWEST ASIA SERVICE MEDAL (W/2*), SEA SERVICE DEPLOYMENT RIBBON (W/2*), NATIONAL DEFENSE SERVICE MEDAL, KUWAITE LIBERATION MEDAL, KUWAITE LIBERATIONS MEDAL KUWAITE CERTIFICATE OF COMMENDATION (3), MERITORIOUS MAST (3), LETTER OF APPRECIATION (2), CERTIFICATE OF APPRECIATION, ARMED FORCES SERVICE MEDAL

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

19930511:	Applicant reenlisted for 4 years.

19930726:	MARCORSEPMAN 6105 counseling for unsatisfactory performance as evidenced by your failure to conform to personal appearance/weight standards.  You are overweight, weighing 224 pounds/measuring 21.5% body fat on 19940719.  Your maximum weight limit is 203 pounds.

19940831:	CO's NJP -- Viol UCMJ Art. 128 - Strike LCpl G_ with his fist.
	Awarded - - FOP ($300.00) for (1 month); FPO ($644.00) for (1 month), RIR (E-4); Restr for (60 days).  FOP of $644.00 suspended for 6 months.

19950109:	Applicant’s personal appearance is not due to pathological disorder.  Applicant found fit for participation in a physical exercise program.  The recommended loss of 6.3 pounds per month and a total of 19 pounds within 3 months is a realistic goal.

19950111:	Counseling/Progress report: Professional, weight control, ICS.  Warning that member may be processed for administrative discharge for failure to meet standards.

19950911:	Applicant’s personal appearance is not due to pathological disorder.  Applicant found fit for participation in a physical exercise program.  Applicant is being processed for discharge and being placed on weight control for a third time.

19960131:	Applicant found to be overweight not due to pathological disorder.

19960228:	MARCORSEPMAN 6105 counseling for performance, specifically failure to maintain Marine Corps Weight standards (3rd assignment) as required by the current edition of MCO 6100.10.

Discharge Process

Date Notified:	19960313
Basis for Discharge:	FAILURE TO CONFORM TO THE MARINE CORPS HEIGHT/WEIGHT STANDARDS
	UNSATISFACTORY PERFORMANCE DUE TO:  UNSATISFACTORY PERFORMANCE OF DUTIES WHILE ASSIGNED TO THE WEIGHT CONTROL PROGRAM
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		199603132
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (NOT FOUND IN RECORD)
	Administrative Board			

Commanding Officer Recommendation (date):	 (19960321)
SJA review (date):	 (19960426)
Separation Authority (date):	COMMANDER, MARINE CORPS AIR BASES, EASTERN AREA, CHERRY POINT, NC (19960426)
              Basis for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19960515

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 P1900.16E), effective 18 August 1995 to 31August 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