Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD10-01728

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100629
Characterization of Service Received:  
Narrative Reason for Discharge:  DISABILITY, EXISTED PRIOR TO SERVICE
Authority for Discharge:  MARCORSEPMAN 8404

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19970415 - 19970617  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19970618	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19980930	Highest Rank:  
Length of Service:    Year    Months  01  Day
Education Level:  	AFQT:  80
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle 

Periods of UA/CONF:	UA 19971224 - 19980103 (11 days)	UA 19980505 - 19980506 (1 day) 

NJP:  

- 19980123:	Article 86 (Absence without leave, UA, 19971224 - 19980104, 11 days)
	Awarded:  FOR RESTR EPD   Suspended:  NONE

- 19980527:	Article  (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer), 2 specifications
	Specification 1:  Disrespectful in language after being formally dismissed 
	Specification 2:  Disrespectful to an NCO by his actions and language
	Article 107 (False official statement, made a false official statement to a Gunnery Sergeant) 
	Awarded: RIR(to E-1) FOP RESTR EPD   Suspended:  FOP (1 month)

- 19980912:	Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer, disobeyed an order from a Corporal to put down a wine bottle and leave the area) 
	Awarded: FOP RESTR EPD   Suspended:  RESTR EPD

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19980126:	For recent NJP related to violation of UCMJ Article 86 (Absence without leave).

- 19980624:	For continued display of apathetic attitude.  His reluctance to improve his position within the platoon due to the fact he has not shown any sign of determination or integrity.

- 19980626:	For insubordinate conduct toward a noncommissioned officer (UCMJ Article 91).

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	  “DISABILITY, EXISTED PRIOR TO SERVICE”
	
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:	

Pertinent Regulation/Law

A.  Paragraph 8404, DISABILITY, EXISTED PRIOR TO SERVICE of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

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 503, Equity.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 204, Jurisdictional Limitations Authority for Review of Discharges.

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

Applicant’s Issues

1.	Applicant contends his medical injury related discharge was inequitable.  
2.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20111020		Location: Washington D.C.	 Representation: NONE

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  DISABILITY, EXISTED PRIOR TO SERVICE.

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 identified two decisional issues for the Board’s consideration.  The Board completed 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 three 6105 retention counseling warnings.  The record also reflected  nonjudicial punishments (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 24 Dec 1997 to 4 Jan 1998, 11 days, terminated by his surrender), Article 91 (Insubordinate conduct toward a noncommissioned officer, 3 specifications: disrespectful language after being formally dismissed; disrespectful actions and language; and disobeyed an order from a Corporal to put down a wine bottle and leave the area).  The Applicant’s record also revealed that he was granted enlistment into the Marine Corps after physical evaluation of significant injuries he sustained as a child.  However, after boot camp and school of infantry training, he began to experience increasing pain and tenderness in his right foot.  He was placed on limited duty (Apr-Jul 1998) and referred for a medical evaluation board (MEB), which determined that the Applicant was unfit for further continued service.  The Applicant’s case was then referred to the Physical Evaluation Board (PEB) in Washington, DC for final review and adjudication, which occurred on 13 Aug 1998.  After careful analysis and deliberation, the PEB determined the findings of the local MEB to be correct, that the Applicant was unfit for further service, and further stating that the Applicant’s disability, which existed prior to service, may be permanent.  On 17 Aug 1998, the Applicant accepted the preliminary findings of the PEB.  The Applicant was subsequently administratively separated from the Marine Corps on 30 Sep 1998 with a General (Under Honorable Conditions) discharge due to Disability, Existed Prior to Service.

:  (Decisional) ()  .  The Applicant contends his medical injury related discharge was inequitable.  In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  With respect to a discharge as determined by a PEB, the action of the NDRB is restricted to matters of equity related to the characterization of service at discharge; the NDRB does not have jurisdictional authority to change the finding of a PEB.  In response to the Applicant’s request for review, determinations by the PEB are presumed to be established facts by the NDRB.  As such, the Applicant's request for review was considered under the pertinent standards of equity to determine if any factors in this particular case merited a change in the assigned characterization of service at discharge.

The Applicant was separated from the military service pursuant to paragraph 8404 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) – Discharge for disability existing prior to service.  The Secretary of the Navy PEB made the determination for discharge due to disability, which was approved by the Commandant of the Marine Corps who then directed the Applicant be discharged.  The Applicant was discharged subsequently by his local command and received a General (Under Honorable Conditions) characterization of service with an assigned reentry code of RE-3P - recommended for reenlistment by the Commanding Officer upon removal of the disqualifying factor.  The Applicant’s service record included three 6105 retention counseling warnings and  NJPs for  of UCMJ Articles 86 and 91.  Per the MARCORSEPMAN, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other 

characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  After careful consideration, the Board found that the Applicant’s discharge to be equitable and in accordance with the applicable orders and directives in effect at the time of his discharge.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  In his letter to the NDRB, the Applicant provided evidence of Honorable discharge from his service in the U.S. Army (8 months, 8 May 2001) and the Iowa National Guard (8 months, 21 Aug 2000).  Although the Applicant’s attempts to continue military service are commendable, his post-service achievements need to be more encompassing.  The Applicant could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum, completion of these items alone does not guarantee a discharge upgrade as each discharge is reviewed by the Board on a case by case basis.  After detailed examination and deliberation, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions).  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain DISABILITY, EXISTED PRIOR TO SERVICE.  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.

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), 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 - Nonjudicial 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