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

 ex-Cpl, USMC
Docket No. MD04-01356

Applicant’s Request

The application for discharge review was received on 20040824.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20041229.  After a thorough review of the 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.  “A change of discharge is requested because the one given at the time was unfair.  Having the the opportunity of receiving an Honorable discharge for the hard work and extensive hours worked per the separation manual I qualify for an Honorable Discharge even if it was with a not recommended for reenlistment code.”

Documentation

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

Applicant’s DD Form 214
Letter from P_ S_, Esq.
Good Conduct certificate
Separation authorization letter
Extract from MCO P1900.16E
Two photos of Applicant
Extract from USMC website

PART II - SUMMARY OF SERVICE

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

	Active:     None
	Inactive:  USMCR(J)		950530 - 951010	COG

Period of Service Under Review:

Date of Enlistment:  951011		Date of Discharge:  990628

Length of Service (years, months, days):

	Active:    04  08  18
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rank:  Cpl			MOS:  0131

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (10)			Conduct:  4.5 (10)

Military Decorations:  None

Unit/Campaign/Service Awards: NUC, AFSM, GCM, SSDR, NDSM, AFEM, REB (3d Award), Pistol Sharpshooter Badge

Days of Unauthorized Absence:  None

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:

960812:	Counseled concerning deficiency, specifically, physical condition is sub-par.  Advised of assistance available and corrective actions.  

970110:	Applicant counseled on his noticeable improvement since the above entry.

971217:	Acknowledged eligibility but not recommended for promotion to Cpl because of being assigned to the Weight Control Program.

990212:	Counseled concerning deficiency, specifically, failure to perform tasks in a timely and proficient manner, and inability to perform as a Marine NCO.  Advised of assistance available and corrective actions.  Discharge warning issued.

990318:	Counseled concerning deficiency, specifically, substandard initiative, knowledge and leadership, organizational skills, physical fitness and appearance.  Advised of assistance available and corrective actions.  

990407:	Credentialed Health Care Provider found Applicant’s overweight condition is not due to a pathological disorder.  Found fit for remedial physical fitness training.  Recommended the loss of 12lbs per month and total of 36 pounds within a 3 month period as a realistic goal.

990414:	Reassigned to the weight control program.  Present weight is 233lbs with 27% body fat.  Height is 71”.  Goal is 197lbs with 18% body fat.  CO directed Applicant lose 8lbs. per month and a total of 24lbs. in 3 months.

990414:	Counseled concerning deficiency, specifically, declining performance and conduct.  Relieved of billet due to substandard initiative, knowledge and leadership.  Apathetic attitude toward meeting the USMC minimum physical standards for weight/body fat and fitness.  Advised of assistance available and corrective actions.  

990421:	Counseled concerning deficiency, specifically, lacking in attributes required of my current grade and as a Marine (both technically and professionally), advised of assistance available and corrective actions.  

990506:	Counseled concerning unsatisfactory progress while assigned to the weight control program, in that he did not attain his weight loss goal, but gained 6lbs. since the last weigh-in.

990508:	Counseled concerning deficiency, specifically, UA.  Advised of assistance available and corrective actions.  Discharge warning issued.

990514:	Counseled concerning deficiency, specifically, failure of the PFT.  Advised of assistance available and corrective actions.  Discharge warning issued.

990621:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of unsatisfactory performance of duties.  The basis for discharge is unsatisfactory performance while assigned to the weight control program, Applicant does not qualify for separation based upon weight control failure, because he did not make a reasonable effort to conform to Marine Corps height/weight standards by adhering to the regimen prescribed by a credentialed health care provider (ACHCP). Applicant's maximum weight is 197 pounds.  On 990414 the Applicant was assigned to the weight control program, for the second time, at a weight of 233 pounds and as of 990602, his weight was 243 pounds.  In addition, the Applicant’s work performance has been unsatisfactory.

990621:	Commanding Officer recommended discharge with a general (under honorable conditions) due to unsatisfactory performance due to failure to conform to Marine Corps weight standards.  Relieved of duties as section chief due to his unsatisfactory work performance.

990623:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

990625:	GCMCA [CO, MCES] directed the Applicant's discharge with a general (under honorable conditions) by reason unsatisfactory performance due failure to conform to Marine Corps weight standards.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990628 with a general (under honorable conditions) due to unsatisfactory performance due to failure to conform to Marine Corps weight standards. (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  A characterization of service of under honorable conditions (general) 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 numerous adverse counseling entries for unsatisfactory performance and conduct relating to his billet assignments, substandard physical fitness, and failure to make progress while assigned to the weight control program.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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