ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20160906
Characterization of Service Received:   
Narrative Reason for Discharge:   UNSATISFACTORY PERFORMANCE
Authority for Discharge:   MARCORSEPMAN 6206 [UNSATISFACTORY PERFORMANCE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: WEIGHT CONTROL FAILURE / MEDICAL
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	               	Active:	  

Period of Service Under Review:
Date of Enlistment:  20080721	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20120821	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   01 Day(s)
Education Level:  	AFQT:  71

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.1 (NFIR)   Behavior/Conduct: 3.9 (NFIR)     
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle   GCM GWOTSM NDSM NUC MM (2 Awd) LoA   

Periods of UA:  NONE 
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  	SCM:  	SPCM:  	CIVIL ARREST:  	CC:  

Retention Warning Counseling: 11

- 20101116:	For initial assignment to the Marine Corps Body Composition Program (BCP)

- 20110224:	For violation of Article 86 of the UCMJ, absent from MALS-14 AV1 Division BCP 

- 20110401:	For satisfactory performance for the four month evaluation, but failed to meet weight/body composition goals

- 20110519:	For satisfactory performance and being within Marine Corps weight standards

- 20111108:	For second assignment to the Marine Corps Body Composition Program (BCP)

- 20120214:	For proficiency marks of 3.7/3.5 for the semi-annual period of January 2012, below average marks due to failure to comply with Marine Corps height and weight standards while on the BCP the second time 

- 20120308:	For unsatisfactory performance while assigned to the Marine Corps BCP

- 20120419:	For unsatisfactory performance while assigned to the Marine Corps BCP and not meeting fifth month weight reduction goal

- 20120507:	For failure to comply with Marine Corps height and weight standards

- 20120713:	For failure to comply with Marine Corps height and weight standards after being assigned twice to the Marine Corps BCP

- 20120807:	For proficiency marks of 3.8/3.5 for the semi-annual period of July 2012, below average marks due to performing duties in a below average manner with constant necessary guidance and being assigned to the BCP  

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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 26 November 2013 until present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant requests a change to his character of service and narrative reason for separation contending that his discharge was due to weight gain and that he was unable to meet the standard weight requirement because of an injury to his back and residuals.
2.	The Applicant contends that he could not meet weight standard because he could not exercise and was under orders not to do so.
3.	The Applicant contends that his narrative reason for separation was Unsatisfactory Performance, which he states is not true and that it was due to weight control failure due to medical reasons.

Discussion

Date:  20170117		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

As a result of the Applicant’s claim of PTSD, TBI, Military Sexual Trauma, or a mental health condition, and in accordance with U.S. Code, Title X, § 1553; Memorandum, The Secretary of Defense, to Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sep. 2014), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma, or a mental health condition potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with U.S. Code, Title X, § 1553. 

The Applicant's record of service included:

Eleven 

Based on the Applicant’s unsatisfactory performance, the command administratively processed the Applicant for separation.      When notified of administrative separation processing, the Applicant  their rights to consult with a qualified counsel and to submit a written statement.   A separation code of JHJ4 on the Applicant’s DD Form 293 indicates that he was not entitled to an Administrative Separation Board.

:  The Applicant requests a change to his character of service and narrative reason for separation contending that his discharge was due to weight gain and that he was unable to meet the standard weight requirement because of an injury to his back and residuals.  The Applicant also contends that he could not meet weight standard because he could not exercise and was under orders not to do so.  The Applicant provides a letter from the VA showing 100% disability that included percentage allocated to back issues, knee issues, migraine headaches, and 70% for PTSD. The Applicant stated on his DD Form 293 that he was ordered not to exercise and that he provided documentation to support this.  A review of the information provided by the Applicant shows that he was placed on light duty from 23 February – 03 June 12, where it listed various exercises not to be conducted, but there were also exercises listed that he could have still been able to perform to include elliptical trainer, stationary bike, and swimming, as confirmed by the physician on the NDRB when reviewing the Applicant’s documentation.  The Applicant injured his back three and half months into his second BCP and based on the documents he provided, he had gained 19 pounds and 6% body fat from the start of the program on 08 November 2011 to when he was injured on 22 February 2012.  He started this BCP at 206 pounds and went from having a goal to lose 9 pounds in six months to reach the weight of 197, to having to lose 28 pounds in two and a half months prior to getting injured.  The Applicant gained 19 pounds while on the BCP prior to getting injured and prior to being placed on light duty.  This falls directly in line with “failure to conform to weight standards as a result of apathy or a lack of self-discipline” found in MARCORSEPMAN, paragraph 6206, for Unsatisfactory Performance, which was used as the separation authority for the Applicant’s discharge.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  

:  The Applicant contends that his narrative reason for separation was Unsatisfactory Performance, which he states is not true and that his discharge was because of weight control failure due to medical reasons.  The Applicant states that his discharged should be based on MARCORSEPMAN paragraph 6215, in the appropriate section that describes weight control failure due to medical reasons:  “Marines with a medically diagnosed condition that precludes or interferes with weight/body fat control may be separated through appropriate medical channels.”  He also states that he also earned a Good Conduct Medal and multiple Meritorious Masts, which further justify him getting him receiving an Honorable discharge.  The Applicant provides a copy of his Good Conduct Medal (GCM) from July 2008 – July 2011 and his service record shows that he received two Meritorious Masts (MMs) with the last one received 24 August 2010.  At the time the Applicant received his GCM, he had passed his first BCP and was on not placed on his second BCP until around four months after receiving his GCM and over a year from when he was separated.  His Meritorious Masts were earned before he was on his initial BCP. The record shows that the Applicant was discharged by reason of Unsatisfactory Performance for failure to confirm to weight standards due to apathy or lack of self-discipline per paragraph 6206.5 of the MARCOPSEPMAN as stated by the Commanding Officer, Marine Aircraft Group 14 in his letter to the Commanding General, 2D Marine Aircraft Wing on 17 July 2012.   A review of the Applicant’s medical record that he submitted indicated that the Applicant was not diagnosed with a medical condition that interfered with weight/body fat control, as confirmed by the physician on the NDRB.  In addition, the Applicant was offered a nutrition consult on 06 March 2012, which he declined.  When notified that he was being recommended for separation, the Applicant waived his rights to counsel and to submit a statement.  If the Applicant had issues with his discharge, it was his obligation to contest this at the time he was notified of the separation proceedings.  The NDRB found that the discharge was proper and equitable. 

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge.    Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  UNSATISFACTORY PERFORMANCE with a corresponding separation code of JHJ4, and the reentry code shall  RE-3P.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.