ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080715
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19991208 - 19991214  		Active:  

Period of Service Under Review:
Date of Enlistment:  19991215	Period of Enlistment:   Years   Months	Date of Discharge:  20030305
Length of Service:    Years    Months   22  Days	   Education Level:  	Age at Enlistment:  
AFQT:  36     MOS:  3381	     Highest Rank:        Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):  NFIR
Awards and Decorations (per DD 214):  Rifle  Pistol   

Periods of UA/CONF:       NJP:       SCM:       SPCM:       CC:  

6105 Counseling:  
20020716:  For assignment to Body Composition Program (BCP).

20021010:  For unsatisfactory progress in BCP.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, 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.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Record of service.
2.  Discharge completed before PEB findings completed.
3.  Not informed that discharge could be “General.”
4.  Threatened with court-martial if he did not accept a “General” discharge.
5.  Good Conduct Medal withheld and not presented until after discharge completed.

Decision

Date:  20081016		Location:  Washington D.C.	 Representation:  

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

Discussion

:  ()  .  The Applicant contends he is entitled to an upgrade of his discharge due to his record of service.  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.  The Board reviewed the Applicant’s record of service and noted it did not reflect any misconduct, but it does show long-term failure to comply with Marine Corps standards for body weight and body composition.  

The Applicant was initially counseled on 17 January 2002 that he was overweight and over the allowed percentage of body fat.  However, he was not assigned to the Marine Corps’ Body Composition Program (BCP) due to pending surgical procedures.  
After the Applicant had surgical operations on his knees, he was assigned to BCP beginning on 24 June 2002.  The assignment included weight-loss requirements and recommendations for getting assistance.  Part of the assignment to BCP also included a medical evaluation.  The response from the medical evaluation, dated 19 June 2002, indicated the Applicant should not engage in running or hiking, but he could swim and perform upper body exercises.  The Applicant was counseled again on 10 October 2002 he was not making satisfactory progress in the BCP.  Finally, the Applicant was counseled on 17 January 2003 he had not made satisfactory progress on the BCP, was not being given an extension on the BCP, and would therefore be processed for an administrative separation.  

The command had the option of processing the administrative separation under one of two paragraphs in MCO P1900.16F:  Paragraph 6215, Weight Control/Body Composition Failure, used when a Marine fails to meet weight and body fat standards, and the Marine’s performance and conduct otherwise conforms to standards; or Paragraph 6206, Unsatisfactory Performance, used when a member is to be separated for failure to conform to weight standards as a result of apathy or a lack of self-discipline.  The command opted to separate the Applicant under paragraph 6206, Unsatisfactory Performance, due to the Applicant’s sustained lack of progress in loosing weight.  To determine the characterization of service the commanding officer adhered to Paragraph 1004.2.a.(2) of MCO P1900.16F, which states a Marine being involuntarily separated as a result of unsatisfactory performance should be given an “Honorable” characterization only if the Marine’s service is so meritorious that any other characterization would clearly be inappropriate.  The NDRB determined the command acted within regulations in separating the Applicant and in determining the characterization of service.  There was nothing resident within the Applicant’s record which could be discerned as being so meritorious as to preclude the assigned characterization of “General (Under Honorable Conditions).  The Board determined an upgrade would be inappropriate.

:  ()  .  The Applicant contends he is entitled to an upgrade since his Physical Evaluation Board (PEB) was not completed before he was discharged.  The Applicant was the subject of a medical board conducted 10 January 2003.  The military doctor completing the report delivered the document to the Applicant, directing him to take it to the Medical Board Section at Beaufort Naval Hospital.  The Applicant, however, declined to do so.  The military 

doctor initially sent the document to the hospital, but later withdrew them based on the Applicant’s wishes to file a claim through the VA.  The doctor provides this information in a Memorandum for the Record dated 28 February 2003.  The Commanding General did not direct the discharge of the Applicant until after he knew of the Applicant’s withdrawal from the PEB.  The NDRB determined the Applicant’s claim was without merit due to the Applicant failing to take the findings of his medical board, as directed, to the Medical Board Section and then subsequently withdrawing his board results from the PEB process to opt only for a VA claim.  The NDRB determined an upgrade would be inappropriate.

:  ()  .  The Applicant contends he was not informed he could be discharged with a “General (Under Honorable Conditions)” characterization of service.  The record of evidence shows the Applicant was notified in writing by his Battalion Commander on 12 February 2003 he was recommending the Applicant be discharged with a “General (Under Honorable Conditions)” characterization of service.  On the same date the Applicant acknowledged the separation proceedings, on which he initialed next to the line stating “I understand that I am being recommended for separation with a “General (Under Honorable Conditions)” characterization of service and that the least favorable characterization which I may receive is a “General (Under Honorable Conditions).”  The Board also noted the Applicant waived his right to consult with legal counsel in spite of being advised it was in his best interests not waive his rights without consultation with legal counsel.  The Applicant’s claim he was not informed is without merit and the Board determined an upgrade would be inappropriate.

Issues 4-5:  (Equity) RELIEF NOT WARRANTED.  The Applicant contends he was threatened with trial by court-martial and had his Good Conduct Medal withheld until his discharge was completed.  The Applicant offers no evidence to support these claims nor is there evidence in the service record to  support this.   Furthermore, the NDRB does not have the authority to investigate these matters.  The Board determined an upgrade would be inappropriate based on this claim.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court-martial 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 other medical related reasons.”  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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