ex-, USMC
MD07-00997

Current Discharge and Applicant’s Request

Application Received:  20070711 	Characterization Received:  
Narrative Reason:  WEIGHT CONTROL FAILURE 	Authority:  MARCORSEPMAN 6215

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. RE Code change
			2. Weight problem caused by misdiagnosed/undiagnosed condition

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  WEIGHT CONTROL FAILURE.

Date:  20080110		Location:  Washington D.C.	 Representation:  

Discussion

:   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 ().  The Applicant claims that her failure to lose weight was due to her use of Depo Provera injections for birth control, use of which commonly includes weight gain as a side effect.  The Board found that the Applicant’s record clearly demonstrated that the Applicant was receiving Depo Provera injections prior to and during her initial assignment to the Body Composition Program (BCP).  However, directly contrary to her claim of having been misdiagnosed or undiagnosed, her record unambiguously reveals that competent medical authority specifically identified her use of Depo Provera as a potential obstacle to the Applicant’s efforts to lose weight.  The Applicant discontinued the injections and was provided an extension on the BCP.  In light the relatively small amount of weight the Applicant was required to lose, the amount of time she was given in which to lose it, and the evidence in the record demonstrating that her physical training and dietary efforts were half-hearted at best, the Board was satisfied that the Applicant’s failure to reach her weight goals was not due to any medical treatment or condition beyond her control.   

Issue 3 ().  Although not raised by the Applicant, the Board noted that the Applicant was notified of administrative separation on the basis of unsatisfactory performance but separated on the basis of weight control failure.  Normally, a member may not be separated for basis of which they are not notified.  However, in the Applicant’s case the unsatisfactory performance in the view of her Commanding Officer was her weight control failure due to indifference or apathy.  The Separation Authority, in his review of the case, apparently determined that describing the Applicant’s efforts as indifferent or apathetic was not warranted.  The Board, in its review, found no prejudice to the Applicant from having a basis for discharge as weight control failure (a simple statement of fact) rather than as unsatisfactory performance (a negative judgment of performance, and by implication, character).  Further, the Board noted that, by regulation in light of the Applicant’s documented misconduct, she should have also been processed misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.  While it was error for the Commanding Officer not to have done so, the Board found that there was clearly no error to the Applicant as result.  Therefore, the Board found the basis for discharge and the Applicant’s characterization of service neither improper or inequitable. 

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)	20000923 - 20010710  		Active:   
Period of Service Under Review:
Date of Enlistment: 20010711			Years Contracted:  			Date of Discharge:  20040326
Length of Service:  02  Yrs  08  Mths  15  Dys			Lost Time:  Days UA:    Days Confined:  
Education Level:      Age at Enlistment:        AFQT: 53       MOS: 0411      Highest Rank: PFC
Proficiency/Conduct marks (# of occasions):	3.7(4)/3.3(4)		Awards and Decorations (per DD 214):  Rifle 

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

20010107:	Enlistment weight waiver granted.

20020115:	To unauthorized absence.

20020406:	From unauthorized absence (81 days/surrendered).

20020409:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence 20020115 – 20020406.
	Awarded - FOP ($552.00) for (2 months); RIR (E-1); Restr for (60 days).

20021218:	Applicant found not within body composition standards: 144 lbs, 32% body fat.  Maximum weight: 141 lbs.

20030116:	Medical Officer found body composition not due to underlying cause or associated disease.  

20030116:	Applicant acknowledged placement on Body Composition Program (BCP) with goal of .5 lb and 1% body fat loss per month for 6 months with total loss goal of 3 lbs and 6% body fat.

20030116:	MARCORSEPMAN 6105 counseling for assignment to the Marine Corps Body Composition Program.  

20030312:	NJP -- Viol UCMJ Art. 92 - Slept in male Marine’s barracks room overnight.
	Awarded - FOP ($645.00) for (1 month); Restr for (14 days); Extra duties (14 days).

20030312:	MARCORSEPMAN 6105 counseling for failure to obey regulations and direct, lawful orders.  

20030429:	Medical Record:  Reason for visit:  Depo Provera injection
	Diagnosis:  Tolerated procedure well.
	Recommendation:  Next injection 20030729.

20030515:	4-month BCP reevaluation:  gained 2 lbs and 2% body fat since placement on BCP.

20030528:	Medical Officer found body composition not due to underlying cause or associated disease.  Continue BCP.

20030716:	End of Applicant’s initial BCP.  143 lbs, 35% body fat.

20030729:	Medical Record:  Reason for visit:  Weight control program
	Diagnosis:  Physical appearance not due to pathological disorder, however, was on birth control that could cause weight gain.  Recommended loss of 4-8 pounds per month and a total of 8 pounds within 6 months is a realistic goal.
	Recommendation:  Discontinue Depo Provera, 6 month review for weight loss.

20030818:	Competency Review Board finding:  professional incompetence and irresponsibility justified administrative reduction.  Reduced to Private.

20030820:	MARCORSEPMAN 6105 counseling for failure to report for body composition evaluation on 20030813. 

20030820:	Applicant acknowledged 6 month extension on BCP from 20030716.

20030820:	MARCORSEPMAN 6105 counseling for 6 month extension on Marine Corps Body Composition Program.  

20031217:	4 month BCP reevaluation:  gained 4 lbs and 2% body fat since placement on BCP.

20031217:	Medical Officer found body composition not due to underlying cause or associated disease.  Continue BCP.

20031217:	MARCORSEPMAN 6105 counseling unsatisfactory performance on BCP, failure to meet goals due to insufficient effort.

20040115:	At expiration of BCP extension, Applicant weight was 149 lbs.  Inaccurately measured at 26% body fat and mistakenly transferred from Headquarters Company to 10th Marines as permanent personnel.  Actual body fat during BCP 32-34%.  Error identified by 10th Marines.  Applicant returned to Headquarters Company for administrative processing.
	[Extracted from CO separation recommendation of 20040310.]

Discharge Process

Date Notified:	20040310 (See discussion in Issue 3)
Basis for Discharge:	 (See discussion in Issue 3)
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20040309 
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20040310)

20040312:	Medical Record:  Reason for visit:  Stomach pain, 5 weeks pregnant.
	Diagnosis:  Early pregnancy
	Recommendation:  Increased fluids, fiber diet, LLD x 3, follow-up as needed.

SJA review (date):	 
Separation Authority (date):	COMMANDING GENERAL, 2ND MARINE DIVISION (20040315)
              Basis for discharge directed:	WEIGHT CONTROL FAILURE
              Characterization directed:	
Date Applicant Discharged:	20040326

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)   Veteran’s Service Officer letter

Pertinent Regulation/Law

A.  Paragraph 6215, WEIGHT CONTROL FAILURE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 86, Absence without leave (for more than 30 days); and 92, Failure to obey order or regulation.

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