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

 ex-PFC, USMC
Docket No. MD04-00237

Applicant’s Request

The application for discharge review was received on 20031119.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  (GENERAL) UNDER HONORABLE CONDITIONS/UNSATISFACTORY PERFORMANCE, authority: MARCORSEPMAN Par. 6206.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Member's of the Board,

I want to thank you first of all for taking the time to look over my request.  As you all know,  I served in the United Stated Marine Corps (USMC) from Feb. 1997 to Apr. 2000.  I was discharged received a General Under Honorable Conditions for no longer meeting the height and weight requirements under USMC Regulations.  When I was on active duty, I was not given a chance or opportunity to come with in regulations.  I suffered a back injury while performing my duties as a Military Policeman on Camp Pendleton, California.  I underwent Chiropractic Treatment which ended up with negative results, due to not being able to complete my treatment.  I was ordered or given a different assignment when it came down to me having an appointment which was orchestrated by my Company First Sergeant.
In one occasion I received a Non-Judicial Punishment (NJP) where I was accused by my Company First Sergeant of malingering, several counts of unauthorized absence for missing my medical appointments and forging a medical document.  I was outraged and disturbed of the allegations.  I was brought up to the Company Commander and was given a 45 days restriction, 45 days extra duties and half months forfeiture of pay for 2 months.  The maximum sentencing for an NJP under the Uniform Code of Military Justice (UCMJ).  During the NJP the Company Commander was not convinced that I had committed such acts and was influenced by the Company First Sergeant to change his mind.  At one point the Company Commander and First Sergeant began to disagree with what was taking place and said that everything was unfounded.  The First Sergeant admitted that he was wrong about everything and told the Commander during the proceeding that he had forgotten that he had re-assigned me to a different section for a period of time.  Nevertheless I was found guilty by the Commander for malingering and the charges for unauthorized absence where dropped, even though there was a reasonable doubt.
I appealed my sentence to the Commanding General of Camp Pendleton.  I was obligated to start my sentence until further notice by the General.  Time passed and I served my 45 days restriction, 45 days extra duty, and forfeiture of pay.  The day that I was allowed to go home to my wife, I received a response by the General.  The General had responded to my appeal immediately and had overruled the outcome of the NJP.  Nevertheless I never received the response until the day my punishment was completed, and the appeal had been singed and dated 3 days after my appeal was submitted.  Once again I was outraged and demanded an explanation from my First Sergeant.  All he could say was, “It’s not my responsibility, to make sure you got that” even though it was on his desk.  Disillusioned of what took place, I looked back at what the Marine Corps had taught me and held my head up high, First Sergeant had forgotten about Mission Accomplishment, and Troop Welfare.  I begged and pleated to be re-assigned just like the other Marines who did not meet Height and Weight requirements to be placed on a different section that would allow me to perform Physical Fitness Training.  I was denied the chance and ignored.
The day of my discharge I never felt such betrayal; I was “hung out to dry”.  I had aspirations to continue in the Marine Corps and gain a Commission as an Officer.  With the current discharge I can’t even claim my Montgomery G.I.  bill for which I paid into to continue my education.  I am enrolled at Palomar Community College pursing a Degree in Political Science.  I currently work for General Electric, where I’ve held a position as their Chemical/Material Handler for the past 9 months.  Before that I held position as a computer technician for the dot com industry.  I am a law biding citizen, a loving husband, bother, uncle and son.  I am an excellent example to our youths of today by volunteering at the boys and girls club, teaching them alternatives to street gangs and drugs.  I am also in great physical shape and meet height and weight requirements for the Marine Corps.  Our country is need of leaders such as my self, now more than ever since the incidents of September 11, 2001 and our current fight against terrorism.  I would only hope that you acknowledge the same and make the decision in granting me an Honorable Discharge and a re-enlistment code that would give me the opportunity to re-join my ranks that I so much love and miss.  If granted I will re-join as an officer in the Marine Corps.  I would make a great leader in our Military of this wonderful nation.

Sincerely,

P_ N_ T_ (Applicant)

P.S. Semper Fi!!”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    None
	Inactive:  USMCR(J)		970218 - 970224	COG

Period of Service Under Review:

Date of Enlistment:  970225		Date of Discharge:  000426

Length of Service (years, months, days):

	Active:    03  02  02
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rank:  LCpl			MOS:  5811

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards: OSDR, MUC

Days of Unauthorized Absence:  None

*No marks found in service record.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority:  MARCORSEPMAN Par. 6206.

Chronological Listing of Significant Service Events:

990104:	Military Police Company Commander, Security Battalion request medical evaluation be conducted to determine if Applicant’s eligibility for weight control program.  Applicant’s current weight: 263 pounds, height 71 ½ inches.  Body Fat: 23%.

990115:	Medical Eval, (BRMCL MCB Camp Pendleton, CA):  Applicant in for weight control evaluation.  Applicant weighs 260 pounds.

990115:	Applicant informed eligible but not recommended for promotion to Corporal for the month of February 1999 because pending weight control.

990215:	Applicant informed eligible but not recommended for promotion to Corporal for the month of March 1999 because pending weight control.

990315:	Applicant informed eligible but not recommended for promotion to Corporal for the month of April 1999 because weight control.

990415:	Applicant informed eligible but not recommended for promotion to Corporal for the month of May 1999 because weight control.

990519:	Applicant informed eligible but not recommended for promotion to Corporal for the month of June 1999 because not meet height and weight standards.

990607:	Weight:  260 pounds.

990615:	Applicant informed eligible but not recommended for promotion to Corporal for the month of July 1999 because weight control.

990618:	Counseled for deficiencies in performance and conduct.  [Failure to meet monthly weight loss goal while assigned to the weight control program.  LCpl T_’s (Applicant’s) monthly weight loss goal is 10 pounds and 1% body fat.  LCpl T_ (Applicant) gained 6 pounds and body fat percentage remained at 23% over a 30 days period, thereby failing to meet his assigned monthly goal.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990712:	Follow up.  Weight: 264 pounds.

990720:	Applicant informed eligible but not recommended for promotion to Corporal for the month of August 1999 because weight control.

990802:	Counseled for deficiencies in performance and conduct.  [Failure to meet monthly weight loss goal while assigned to the weight control program. LCpl T_’s (Applicant’s) monthly weight loss goal is 10 pounds and 1% body fat.  LCpl T_ (Applicant) loss 1 pound and 2% body fat over a 30 day period, thereby failing to meet his assigned monthly goal.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990921:	Medical Evaluation.  Annotations include: [Missed 3 appointments due to leave.]

990922:	Counseled for deficiencies in performance and conduct.  [Failure to meet monthly weight loss goal while assigned to the weight control program. LCpl T_’s (Applicant’s) monthly weight loss goal is 10 pounds and 1% body fat.  LCpl T_ (Applicant) gained 13 pounds and 1% body fat over a 30 day period, thereby failing to meet his assigned monthly goal.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991015:	BRMCL MCB Camp Pendleton, CA: Weight: 280 pounds.  A: Lower back pain.  Obesity.  P: 1) Refer to chiropractor 991005 – 02367.  Applicant educated on weight status and contribution to spinal problem.  Light duty for 2 weeks.  PT at own pace.

991021:	Counseled for deficiencies in performance and conduct.  [Failure to meet monthly weight loss goal while assigned to the weight control program. LCpl T_’s (Applicant’s) monthly weight loss goal is 10 pounds and 1% body fat.  LCpl T_ (Applicant) lost 3 pounds and 1% body fat over a 30 day period, thereby failing to meet his assigned monthly goal.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991116:	Applicant informed eligible but not recommended for promotion to Corporal for the month of December 1999 because weight control and recent NJP.

991213:	Applicant informed eligible but not recommended for promotion to Corporal for the month of January 2000 because weight control.

000119:	Applicant informed eligible but not recommended for promotion to Corporal for the month of February 2000 because weight control.

000128:	Weight Management P.E.:  Applicant has been on weight control for the past 6 months with no weight loss.  Was on light duty for several weeks due to lower back pain.  Current weight: 290.  Acceptable weight: 197.  A: Obesity.  Not in Marine Corps standards.  Ok to participate in weight management.  P: Per above.

000226:	Final physical:  Weight: 290 pounds.

000309:	Applicant informed eligible but not recommended for promotion to Corporal for the month of March 2000 because weight control.

000317:	Applicant informed eligible but not recommended for promotion to Corporal for the month of April 2000 because of a failure to maintain Marine Corps standards.

000417:	Applicant informed eligible but not recommended for promotion to Corporal for the month of May 2000 because weight control.

000426:	DD Form 214: Applicant discharged with a general (under honorable conditions) by reason unsatisfactory performance, authority: MARCORSEPMAN Par. 6206.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000426 with a general (under honorable conditions) characterization due to unsatisfactory performance. (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).  
  
Issue 1.   When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by four counselings for deficiencies in performance and conduct.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, however, 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.
The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6206, UNSATISFACTORY PERFORMANCE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to 31August 2001.

B  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023