ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20110608
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)	20051118 - 20060919  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060920	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100622	Highest Rank:  
Length of Service:    Years    Months  03  Days
Education Level:  	AFQT:  34
MOS:  2141
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle SS NDSM GWOTSM GCM

Periods of UA/CONF:  

NJP:  NONE		SCM:  NONE		SPCM:  NONE		CC:  NONE 

Retention Warning Counseling:  4
- 20070518:	For violation of Article 134.104, Sentinel or lookout offense against.  On 070516 you prejudiced good order and discipline by assaulting the firewatch by jumping on his back, which resulted in your injury.

- 20090210:	For violations of Article 92, Failure to obey an order or regulation.  SNM failed to meet established height-weight standards and/or allowance body fat percentage.

- 20090210:	For assignment to the Marine Corps Body Composition Program.  Specifically, you failed to properly maintain your body composition standards as required by MCO P6100.13.  Your actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC.  You are advised that this subsequent assignment is for a 6-month period.

- 20091110:	For failure to comply with weight/body standards while assigned to the Marine Corps Body Composition Program.

Page 11 Counseling:  3

- 20080515:   I understand I am eligible but not recommended for promotion to Corporal for June, 2008 promotion period because of my lack of leadership.

- 20080606:   I understand I am eligible but not recommended for promotion to Corporal for July, 2008 promotion period because of my lack of leadership.

- 20080715:    I understand I am eligible but not recommended for promotion to Corporal for August, 2008 promotion period because of my lack of responsibility.

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 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.	Applicant contends he was under medical treatment for back issues while assigned to the Marine Corps Body Composition Program (BCP).

Decision

Date:  20120904		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’s record of service included four 6105 retention counseling warnings, but no evidence of commanding officer nonjudicial punishment (NJP) or trial by courts-martial.  The Applicant was administratively processed for separation by his command due to Marine Corps Body Composition Program (BCP) failure.  When notified of administrative separation processing using the  procedure on 22 March 2010, the Applicant waived  right to consult with a qualified counsel, but exercised his right to submit a written statement.  The Applicant was not entitled to an administrative separation board.  On 5 December 2009, the Applicant submitted a statement in anticipation of his proposed administrative separation, stating “I am currently up for an administrative separation.  As for the Body Composition Program failure, I understand that I did not take the proper steps to lose weight and getting out is pretty much the only option now.  I want to put in the fact of a medical surgery during the fact of I did not properly diet and that is this Marine’s fault.  But for a surgery to be in the middle of a Body Composition Program and to expect me to work out like everyone else, I feel was not right.  I did what I could during that time and well it was not enough.  And I understand in the new order that when taking the steps to be put on BCP that I had to go to a Medical Officer.  When I went, I was already on a Limited duty status and the Medical Officer and I had no idea that surgery was in my future.  So my rebuttal stands as that I was on a program and in the middle took something that I thought would keep me in to finish my 4 years and I failed.  I got about nine months left all I want to do is finish that time off.”

On 22 March 2010, the Applicant’s Battalion Commander endorsed his administrative separation package, stating “… The specific basis for my recommendation is (the Applicant’s) documented unsatisfactory performance while assigned to the Body Composition Program, which is evidenced by multiple weigh-in logs, a BCP evaluation form, and multiple photographs.  Due to (the Applicant’s) Weight Control Failure, he has become a liability for the Battalion, as well as the Marine Corps, and his presence jeopardizes the good order and discipline that the Marine Corps upholds.”  On 14 April 2010, after considering the Applicant’s record of service, the chain of command recommendations, and the Applicant’s statement regarding his processing for administrative separation, the Separation Authority directed that the Applicant be discharged from the Marine Corps with an Under Honorable Conditions (General) discharge due to Unsatisfactory Performance.  The Applicant was discharged on 22 June 2010 as directed.

:  (Decisional) ()  .  The Applicant contends his discharge was improper and inequitable, because he was under medical treatment for back issues while assigned to the BCP.  The NDRB conducted an exhaustive review of the Applicant’s record of service to determine whether his discharge met the pertinent standards for propriety and equity.  The Applicant’s service and medical records indicate he was identified with L5 and S1 (lumbar spine) disk bulge, congenital deformity of C1 (cervical spine), and spondylolosis during the spring of 2008.  Due to continued complaints of back pain, the Applicant was placed on his first six-month period of limited duty (8 September 2008 - 7 March 2009) along with authorization for low impact exercise.  In January 2009, the Applicant received a Medical Officer evaluation for the USMC BCP that stated he was not within height/weight standards due to an underlying condition (back pain issues).  On 10 February 2009, the Applicant was placed on his first assignment to BCP for a period of six months (due to present weight 225 lbs, 28% body fat; and a 3rd class PFT score of 173 on 25 June 2008).  The Applicant was placed on his second six-month 

period of limited duty from 7 March - 6 September 2009.  During this period, the Applicant received back surgery in May 2009.  Subsequent to the Applicant’s surgery, the records indicate the Applicant received weekly height/weight measurements from 10 July through 19 October 2009.  During this time, the Applicant went from 221 lbs/41” waist/27% body fat to 236 lbs/43” waist/29% body fat.  The Applicant was placed on a third six-month period of limited duty from 1 October 2009 - 1 April 2010.  Due to continued poor performance in complying with the BCP and Military Appearance Program standards and requirements, the Applicant was processed for administrative separation in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).

Per the MARCORSEPMAN, when a  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 the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  The Applicant’s conduct (violation of UCMJ Article 134.104 in assaulting a sentinel and failing to achieve satisfactory performance in reducing his weight and body fat), which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially considering his grade and length of service, and falls short of what is required for a characterization of service upgrade to Honorable.  Accordingly, the NDRB determined this issue 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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