Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD09-01355

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090421
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:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  19970322	Age at Enlistment:  
Period of Enlistment:   Years
Date of Discharge:  20010209	Highest Rank:  
Length of Service:
	Inactive:	  Year(s)    Month(s)  26  Day(s)
	Active:	  Year(s)    Month(s)  22  Day(s)
Education Level:  	AFQT:  49
MOS:  0351
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:  

- UNDATED:	For unexcused absence on 19990206-19990207 (4 drills).  Applicant not available for signature.

- 20002115:	For unexcused absence on 19980109-1998011, 19981002-19981004, and 19990206-20000206 (62 drills).  Applicant not available for signature.

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:		Substance Abuse:		Criminal Records:	
	Family/Personal Status: 		Community Service:		References:	
	Additional Statements:
		From Applicant:		From Representation:		From Congress member:	

	Other Documentation:  

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

Applicant’s Issues

1.   Believes his discharge was inequitable because he was under the care of a doctor.
2.   “I was told to update my status with medical letters, which I did.”
3.   Post-service conduct warrants consideration.

Decision

Date:  20091217		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  FAILURE TO PARTICIPATE.

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 reflects  6105 counseling warnings for unauthorized absences (UA) from drills.  The Applicant missed a total of ninety-six drills plus his annual training, but had no other documented misconduct which resulted in non-judicial punishment (NJP) or court-martial.  Based on the missed drills by the Applicant,  command administratively processed  for separation.     

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable because he was under the care of a doctor for his left knee, and his doctor provided letters to the command on the condition. The Applicant also claims this medical correspondence from his doctor was missing from his military file.  The command contacted the Applicant to make up his missed drills and explained to the Applicant that he was in a UA status.  The Applicant claims that he thought his Temporary Not Physically Qualified (TNPQ) status excused him from drilling.  The Applicant’s command explained his UA status was caused by his non-compliance status while TNPQ, and that his ignorance was not an excuse and he was required to drill.  The command informed the Applicant he was required to send in documentation from his doctor of his status every 30 days, but Applicant failed to do so, which was noted in the official record by the medical chief: “Private (Applicant) said he was TNPQ but never sent any information to the company or me.” and “To date Private (Applicant) had not sent in any medical documentation of any sort.”  The Applicant failed to comply with the required documentation needed by his command.

For the edification of the Applicant, to ensure that the unit and the medical department representative are kept informed of the Marine’s status, the member is required to provide medical documentation every 30 days from the member’s attending physician or other medical clinic providing services. Reservists who fail to comply with this requirement may be terminated from the TNPQ status after appropriate notification for noncompliance and directed to resume their drilling obligation. Failure to do so could result in involuntary administrative separation and/or administrative reduction in rank.

The NDRB also noted comment made by the commanding officer: “On 25 July 2000, Private (Applicant) came in and spoke with the Inspector-Instructor (I-I) and Inspector-Instructor First Sergeant on how he could come in and make up his unauthorized absent drills.  An agreement to retain this Marine was made and Private (Applicant) was given several opportunities to make up his drills but failed to comply with the arrangement.  There have been numerous letters sent to this Marine encouraging him to return to a drilling status with no success. The Marine had been given opportunity to regain satisfactory participation status, but elected not to.  Telephone calls by his platoon sergeant and members of the I-I Staff were also made not only on drills weekends but also during the week, in hopes to holding this Marine to his word.  I personally exhausted every means to retain this Marine as tasked.”

Issue 3:  (Decisional) ()  . The Applicant contends his post-service conduct is worthy of discharge upgrade consideration.  Although the Applicant states he has been a police officer for more then five years and he lives his life with honor and dignity; he did not provide any documentation as instructed through correspondence from the NDRB.  To consider post-service efforts, the NDRB requires verifiable evidence that the Applicant has taken positive steps in his community and society as a whole.  The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.  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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 August 1995 until 31 August 2001.

B.  Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C.  Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.

D.  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 Association of Service Disable 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 his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water