ex-LCPL, USMC
MD07-00606

 Current Discharge and Applicant’s Request

Application Received:  20070404 	Characterization Received:  
Narrative Reason:  UNSATISFACTORY PERFORMANCE – UNSANITARY HABITS	
Authority:  MARCORSEPMAN 6206.2

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Employment opportunities.
			2.  Unable to perform to standards due to injury.

Decision

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

Date:  20071115                              Location:  Washington D.C.	 Representation:  

Discussion

Issue 1:   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 2 (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.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under honorable conditions (general)  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 was marred by two discharge warnings and one nonjudicial punishment for a violation of UCMJ Article 86.  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.  In fact, the NDRB sees no connection between the Applicant’s injury and his failure to comply with weight standards during the preceding  year while on the weight control program.  An upgrade to honorable would be inappropriate.  

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)  19920526 - 19921130        		
Period of Service Under Review:
Date of Enlistment:  19921201    Years Contracted:  4; Extension:  	Date of Discharge:  19950908       
Length of Service:  02 Yrs   09 Mths   08 Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  12	Age at Enlistment:  19	AFQT:  88	MOS:  7212        Highest Rank:  LCPL
Proficiency/Conduct marks (# of occasions):	4.5(6) / 4.5(6)	
Awards and Decorations (per DD 214):  NDSM, SSDR, LOA x 4.     

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

19920523:	Applicant takes inventory PFT with recruiter.  4 pull-ups, 63 sit-ups, 25:51 3 mile run.  

19940601:	MARCORSEPMAN 6105 counseling for not being recommended for promotion to Corporal due to not meeting Marine Corps weight standards. 

19940628:	Applicant placed on weight control program.  Started the program weighing 208 pound with a goal of 197.  [Extracted from Commanding Officer’s recommendation letter].  

UNDATED:	MARCORSEPMAN 6105 counseling for failure to comply with Marine Corps height and weight standards.  Given a control date of 19950628 to overcome the deficiency.  Discharge warning issued.     

19950120:	MARCORSEPMAN 6105 counseling for being 1 pound over weight and for failing 2 PFTs.  Assigned to the Physical Training Platoon.  Second counseling entry for being UA for physical conditioning.  Discharge warning issued. 

19950215:	NJP -- Viol UCMJ Art. 86 – failure to go to Battalion Physical Training Platoon.        .
	Awarded - FOP ($244) for (1 month) suspended for 6 months; Restr for (14 days); Extra duties (14 days) suspended for 6 months.

19950614:	MARCORSEPMAN 6105 counseling for not being recommended for promotion to Corporal due to recent assignment to weight control program.        

19950615:	Applicant injures left knee playing volleyball.

19950628:	After one year on the program, Applicant’s weight is 211 with 23% body fat.  Notified of administrative separation.  

19950818:	Abbreviated Limited Duty Medical Board report:  No humping, running, range, contact sports, marching, and prolonged standing.  Period of Limited Duty is for 6 months.

Discharge Process

Date Notified:	19950823     
Basis for Discharge:	 DUE TO WEIGHT CONTROL FAILURE	
Least Favorable Characterization:	UNDER HONORABLE CONDITIONS (GENERAL) 
Commanding Officer’s Intended Recommendation:	UNDER HONORABLE CONDITIONS (GENERAL) 

Date Applicant Responded to Notification:		     
Rights Elected at Notification:			19950823
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			

Commanding Officer Recommendation (date):	UNDER HONORABLE CONDITIONS (GENERAL) (19950823)
SJA review (date):	 (19950831)
Separation Authority (date):	COMMANDING GENERAL, 2D MARINE AIRCRAFT WING (19950831)
              Basis for discharge directed:	 DUE TO  
              Characterization directed:	
Date Applicant Discharged:	19950908     

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 Aug 95 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