Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Garcia-Anglin, Nuchy CIV CORB, NDRB
Company: NCPB

Docket No. MD13-01309

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received:  20130604
Characterization of Service Received:  (corrected) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) COMPLETION OF REQUIRED ACTIVE SERVICE
Authority for Discharge:  (per DD 214) MARCORSEPMAN 1005 [COMPLETION OF REQUIRED ACTIVE SERVICE]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20010308 - 20020101  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20020102	Age at Enlistment:  19
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20060101	Highest Rank:  LANCE CORPORAL
Length of Service:  04  Year(s)  00  Month(s)  00  Day(s)
Education Level:  12	AFQT:  57
MOS:  7041
Proficiency/Conduct Marks (# of occasions):  3.9 (NFIR) / 3.9 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX GWOTSM NDSM

Periods of UA/CONF:  NONE

NJP:  2

- 20020925:	Article 92 (Failure to obey order or regulation - being in a male student room after 2200)
	Awarded: RIR FOP  Suspended:  RIR

- 20050310:	Article 92 (Failure to obey order or regulation)
	Article 121 (Larceny and wrongful appropriation)
	Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds)
	Article 134 (General Article - dishonorably fail to pay debt)
	Awarded: RIR FOP RESTR EPD  Suspended:  FOP

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  3

- 20040430:	For failure to pass a Physical Fitness Test on 20040328 by failing the run with a 33:15 run time, you are allotted 31:00.  This is unacceptable as a Marine, you must at the least strive to meet the Marine Corps minimum standards of physical fitness.

- 20050125:	For your failure to pass a Physical Fitness Test on 20041130 by failing the run with a 38:57 run time, you are allotted 31:00.  This is unacceptable as a Marine, you must at the least strive to meet Marine Corps minimum standards of physical fitness.

- 20050211:	For failing to show up for scheduled Remedial Physical Conditioning Platoon on the evening of 20050209.  SNM knows that the reason assigned to RPCP is to benefit her to meet minimum USMC standards.  This type of conduct is not in keeping with good order and discipline of the USMC and will not be tolerated in the future.

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.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, 
Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION.

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 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.	The Applicant wants to use the GI Bill.
2.	The Applicant contends her gunnery sergeant improperly and unfairly lowered her Proficiency (Pro)/Conduct (Con) marks.
3.	The Applicant contends a medical issue caused her weight gain, which led to low Pro/Con marks.

Decision

Date:  20140109	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain COMPLETION OF REQUIRED ACTIVE 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’s record of service included three 6105 counseling warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2 specifications), Article 121 (Larceny and wrongful appropriation), Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds), and Article 134 (General Article - dishonorably fail to pay debt).  The Applicant reached the end of her active obligated service and was discharged with a General (Under Honorable Conditions) characterization of service due to an enlistment average of 3.9 for Conduct.

Issue 1:  (Nondecisional)  The Applicant wants to use the GI Bill.  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.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends her gunnery sergeant improperly and unfairly lowered her Pro/Con marks.  The Applicant submitted a letter from her former sergeant that stated his recommendation for her final Pro/Con marks were 4.5/4.6, and the gunnery sergeant marked them down based on observations outside of the evaluation period so the Applicant would receive a General (Under Honorable Conditions) characterization and be denied education benefits.  Recommendations for Pro/Con marks from a Marine’s chain of command to the commanding officer are just that, recommendations.  The service record shows the Applicant was counseled on 08 December 2005, just prior to her separation, that she had “been informed by [her] commanding officer that [she was] not recommended for reenlistment because of pattern of misconduct, PFT failures, and substandard Pro/Cons and will be assigned a reenlistment code of RE-4.”  If the Applicant felt that her Pro/Con marks were inaccurate or improperly assigned, it was her obligation to rebut those marks at the time of her official counseling.  The Applicant’s service record included three retention warnings for multiple Physical Fitness Tests failures and failing to show up for Remedial Physical Conditioning Platoon and two NJPs for violations of UCMJ Articles 92, 121, 123a, and 134.  These retention warnings and NJPs demonstrate that the Applicant had a pattern of misconduct and substandard performance that would be consistent with low Pro/Con marks.  The NDRB discerned no impropriety or inequity in the Applicant’s Pro/Con marks and further determined her characterization of General (Under Honorable Conditions) was appropriate.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends a medical issue caused her weight gain, which led to her low Pro/Con marks.  The Applicant provided a post-service medical record that shows she was seen by the AALFA Family Clinic from 09 July 2007 to 21 January 2009 and was diagnosed with obesity, hirsutism, and polycystic ovary syndrome.  The NDRB was unable to determine the initial date(s) of the diagnoses from the provided medical record.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct nor her Physical Fitness Test failures that led to her low Pro/Con marks.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 	RESTR - Restriction	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	CBW - 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