ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130815
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)	20070810 - 20080713  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080714	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110425	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  57
MOS:  0612
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20100226:	For failure to maintain Marine Corps height and weight and/or body fat standards.  Effective immediately, you are assigned to the Body Composition Program (BCP).

- 20100719:	For your unsatisfactory performance while assigned to the Marine Corps BCP.  Due to insufficient effort, you have not met your weight/body composition reduction goals.

- 20100914:	For unsatisfactory performance and pending administrative separation.

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:	

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

Applicant’s Issues

1.	The Applicant contends procedural errors were made in body fat measurements that resulted in his inequitable discharge.
2.	The Applicant contends he was improperly allowed to enlist in the Marine Corps, because he was overweight at the time of his enlistment.
3.	The Applicant contends a physical injury prevented him from exercising to lose weight and was the underlying cause for his unsatisfactory performance.
4.	The Applicant contends leadership failures within his unit contributed to his unsatisfactory performance.

Decision

Date:  20140320		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 Board did complete 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  6105 counseling warnings for failure to maintain Marine Corps standards for weight.  The Applicant was assigned to the Body Composition Program (BCP) to meet weight goals, however, he failed to make satisfactory progress.  Based on the Applicant’s unsatisfactory performance,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  right to consult with a qualified counsel but waived his right to submit a written statement.  The Applicant was not entitled to an administrative board.

:  (Decisional) ()  .  The Applicant contends procedural errors were made in body fat measurements that resulted in his wrongful discharge.  The Department of Defense (DOD) has established procedures for the services to use in determining body fat percentages for service members.  Measurements for male service members are taken from the abdomen and from the neck.  The measurements are rounded up ½ inch on the neck and rounded down ½ inch on the abdomen.  Three measurements are taken for each body fat calculation to obtain an accurate average.  The Applicant’s record shows that for each body fat calculation, he was measured around the abdomen and around the neck three times to determine his body fat percentage.  The Applicant’s body fat percentage never was calculated below 20%, and he did not meet the Marine Corps standard of 18% for males.  The Marine Corps body fat standards are derived from DOD’s most stringent body fat standard.  The NDRB reviewed the applicable regulations, found no impropriety in the Applicant’s BCP record, and determined he was properly processed for separation for unsatisfactory performance.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he was improperly allowed to enlist in the Marine Corps, because he was overweight at the time of his enlistment.  The Marine Corps uses two weight standards, one for recruitment and one for retention.  The recruitment weight standard for a male who is 71 inches tall and is between the ages of 16-20 is 221 pounds maximum and 127 pounds minimum.  The Applicant’s record shows he was 71 inches tall and weighed 207 pounds on 14 July 2008, which qualified him for enlistment.  For retention, the Applicant had to maintain a maximum weight of 197 pounds for his height to meet Marine Corps standards.  The NDRB determined the Applicant’s enlistment was proper.  Relief denied.

:  (Decisional) ()  .  The Applicant contends a physical injury prevented him from exercising to lose weight and was the underlying cause for his unsatisfactory performance.  The Marine Corps does not consider a physical injury resulting in a medical recommendation for limited duty to be an acceptable reason for not maintaining weight standards.  Marines who are limited from exercise are required to maintain weight standard by dieting or performing exercises that are within the limitations of medical restrictions.  The Applicant’s record shows that he was properly assigned on limited duty by medical authority from 20 June to 2 July 2010.  As the Applicant was assigned to BCP on 26 February 2010 and continued on the program through September 2010, the NDRB determined there was no merit to his contention that limited duty prevented him from satisfactorily performing his duties for BCP.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends leadership failures within his unit contributed to his unsatisfactory performance.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his command’s leadership failed him.  To the contrary, the Applicant’s record shows his command did an exceptional job in assigning, monitoring, counseling, and guiding the Applicant on the BCP.  Despite this, the Applicant at times was 50 pounds over his maximum allowed weight.  The record shows the Applicant’s command weighed and measured him each week while assigned to BCP, and he was placed on his unit’s remedial physical training program requiring organized exercise each week.  The Applicant was required to take responsibility for the performance of his military duties, to include maintaining his weight standard.  Ultimately, the Applicant’s lack of effort resulted in his command recommending separation for unsatisfactory performance instead of weight control failure.  The NDRB determined the Applicant’s command acted properly, and his discharge characterization of service of General (Under Honorable Conditions) was equitable.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge 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.

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.

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