ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100701
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)	20020212 - 20020324  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20020325	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20031211	Highest Rank:  
Length of Service:    Year(s)    Month(s)  17  Day(s)
Education Level:  	AFQT:  59
MOS:  6048
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of CONF:  

NJP:  

- 20030417:	Article  (UA, 2 specifications)
	Specification 1: Absent from appointed place of duty on 20030409
	Specification 2: Absent from appointed place of duty on 20030410
	Awarded:  (to E-1)    Suspended:   

- 20030912:	Article  (Failure to obey order or regulation - purchasing and providing alcohol to an underage Marine)
	Awarded:  (to E-1)   Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20021015:	For failure of room inspection on 20021011.  You were instructed to field day your room and be ready for reinspection on 20021012 at 1100 by the Section Leader.  During reinspection you were not in the correct uniform and your room had not been cleaned.  There were food and sodas in your room, which are not authorized.  You disobeyed a direct order from the Staff Noncommissioned Officer.

- 20021122:	For failure to meet Marine Corps height/weight standards for the first assignment.

- 20030410:	For violation of UCMJ Article 123a in making, drawing, or uttering check, draft, or order without sufficient funds.  I understand that I am responsible for my financial actions.  I further understand that in the future I should exercise better judgment when presenting a check of payment to ensure there are sufficient funds in my account.  I understand that this type of behavior, should it continue, represents an unacceptable deficiency in my performance, which materially interferes with the proper execution of my duties.

- 20030912:	For your violation of UCMJ Article 92 (Squadron order 1700.21) by purchasing alcohol and providing the same to an underage Marine.  This type of behavior is not consistent with the Marine Corps’ core values and will not be tolerated.  This behavior, should it continue, represents an unacceptable deficiency in your performance, which materially interferes with the proper execution of your duties.

- 20031021:	For unauthorized absence.  Specifically in that on 20030928 you failed to report on time for a restriction muster.

Types of Documents Submitted/reviewed

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

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Paragraph 6215, WEIGHT CONTROL FAILURE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.	Applicant seeks a discharge upgrade to obtain veteran education benefits.  
2.	Applicant contends his light/limited duty status caused him to gain excess weight, which resulted in his discharge.

Decision

Date:  20111013		Location: Washington D.C.	 Representation: 

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue for the Board’s consideration.  The Board conducted a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included five 6105 retention counseling warnings and two  for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications) and Article 92 (Failure to obey an order or regulation).  The record revealed the Applicant was placed on the Body Composition Program (BCP) on or about 22 Nov 2002 for being 10 pounds over the maximum limit.  On 7 Mar 2003 (approximately four months into the six-month BCP assignment), the Applicant was measured more than 24 pounds over the weight limit.  Based on his failure to comply with the Marine Corps height/weight standards, his command administratively processed him for separation in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing using the  procedure on 29 Jul 2003, the Applicant elected to exercise his rights to consult with a qualified counsel and submit a written statement.  On 5 Aug 2003, the Applicant’s defense counsel submitted a memorandum to the Commanding General claiming that the Applicant’s pending administrative separation was being improperly conducted and not in accordance with the requirements of the MARCORSEPMAN due to a physician’s medical record annotation that the Applicant’s non-compliance with height/weight standards was due to “an underlying cause or associated disease.”  However, after thorough review of the Applicant’s service and medical records, which did indicate ongoing complaints of inguinal/testicular pain but no specific etiology found (via several physicians), the Separation Authority concluded, in conjunction with the Marine Aircraft Wing Surgeon, that the Applicant had not made the appropriate effort to control his weight (appropriate diet and limited exercise within his physical ability) and decided to separate him for weight control failure.  On 11 Dec 2003, the Applicant was separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Weight Control Failure. 

:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits.  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends his light/limited duty status caused him to gain excess weight, which resulted in his discharge.  The Board conducted a detailed examination of the Applicant’s records to determine whether his discharge met the pertinent standards of propriety and equity.  Documentation within the records did reveal that the Applicant had repeated medical evaluations for complaints of inguinal and testicular pain.  However, no specific diagnosis could be determined and therefore, no resultant treatment plan had been prescribed.  The Marine Aircraft Wing Surgeon, after a thorough review of the records and in response to the Applicant’s defense counsel’s contention of impropriety, found that the Applicant’s weight gain was not due to an underlying cause or associated disease.  Accordingly, the Separation Authority proceeded to administratively discharge the Applicant for weight control failure.  Pursuant to MARCORSEPMAN section 6215, the characterization of separation should be Honorable, unless an Entry Level Separation (ELS) or General (Under Honorable Conditions) is warranted.  The NDRB determined the Applicant was not 

eligible for an ELS discharge (he had completed more than 180 days of active service) or an Honorable discharge due to his Proficiency and Conduct mark averages of 3.2/3.3 and two NJPs of record.  With substandard performance (Proficiency and Conduct averages below 3.0/4.0) and documented misconduct, the Applicant clearly warranted a General (Under Honorable Conditions) characterization.  After a careful review of the Applicant’s official records, and taking into consideration the facts and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action or inequity in the characterization of the Applicant’s service.  The NDRB found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and the administrative separation process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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