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USMC | DRB | 2001_Marine | MD01-00418
Original file (MD01-00418.rtf) Auto-classification: Denied


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

ex-Cpl, USMCR
Docket No. MD01-00418

Applicant’s Request
The application for discharge review, received 010213, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. I was court martial for being at a seafood market (Fish House) in my CKMO utilities. I do not have a copy of the trial transcript. Please obtain and review. To my understanding, my only punishment was reduction from E5 to E4. Also my comm. Ofc (convening authority) had authority to impose lesser but not more than what the judge thought was appropriate. The incident in doc 1 was reported to my US Congressman as well as IG, CMC, DOD, EEOC, and ATTY GEN, and others. I believe my char. Of svc on my DD214 was a form of retaliation from the conv. Authority (Comm. Ofc). I enlisted into the MC on 7 Nov 85 and was disch. on 21 Nov 99 - the total yrs of svc on DD214 is erroneous. Sea svc for time spent in the Persian Gulf is not listed. I did not sign my DD214 because I was not physically fit to be released from active duty and because of its inaccuracy. Incidentally, the VA has rated me 100% disabled - total and permanent effective 22 Nov 99 - further proof that I was not phy fit to be released at time of discharge. Doc 1 provides just one example of the treatment I recvd form the command regarding my medical issues. If it had not been for the VA, I would not have been able to recv medical treatment, the codes on my DD214 prevented me from obtaining medical treatment at any military installation. Thank you for your consideration. I am still unable to safely return to my home of record. If there are any other discrepancies on my DD214 please correct.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's Statement to the Board (4 pages)
Copy of DD Form 214s (6)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR           910823 - 930305  HON
          Active: USMCR             901217 - 910822  Released ACDU (invol recall)
         Inactive: USMCR           861210 - 901216  Drill status
 861110 - 861209  Released ACDUTRA
                                              860623 - 861108  Released ACDU
                                             851210 - 860418  Released IADT
         Inactive: USMCR           851107 - 851209  To Report ACDU

 Period of Service Under Review :
Date of Enlistment: 930306               Date of Discharge: 991121

 Length of Service (years, months, days):

         Active: 05 05 18
         Inactive: 01 02 27

 Age at Entry: 268                         Years Contracted: 4 (12 months extension)

 Education Level: 12               AFQT: 59

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages : All E-5 performance reports were available to the Board for review.
Military Decorations: None

 Unit/Campaign/Service Awards: KLM(S.A.), KLM (Kuwait), SWASM, NDSM, GCM, SMCRM(2), AFRM, SSDR, MUC, NUC, SECNAV LoC, MM, LoA(5)

Days of Unauthorized Absence: None

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

[Applicant refused to sign the DD Form 214]
 GENERAL (UNDER HONORABLE CONDITIONS)/COMPLETION OF REQUIRED ACTIVE SERVICE, authority: MARCORSEPMAN Par. 1005.



 Chronological Listing of Significant Service Events :

930306:  Reenlisted for term of 4 years.

940508:  Reported for Active Duty Special Works (ADSW).

940826:  Released from ADSW having served 3 months 19 days.

 940830:  Assignment to active duty with Marine Corps Active Reserve (AR) Program.
940923:  Reported to 36 months of active duty.

950213:          Active duty extended from 22 Sep 97 to 21 Sep 98.

 980911:  Medical Board, NavHosp Pensacola: Primary Diagnosis: Rotator Cuff Tear, Right Shoulder, Status Post Surgical Repair; Secondary Diagnosis: Plica, Right Knee, Status Post Arthroscopic Resection. Refer to Physical Evaluation Board.

990217:  PEB found application Fit to Continue on Active Duty and applicant requested reconsideration of finding and a formal hearing.

990330:  PEB considered the rebuttal, but no change in findings. Formal Hearing granted.

990721:  Applicant found "Fit" to perform duties on active duty.
991121:  Applicant discharged with a General Under Honorable Conditions by reason of completion of active service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant refused to sign the DD Form 214 but was discharged on 991121 with a General (Under Honorable Conditions) due to completion of required active service (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. The applicant did not provide sufficient evidence to the Board to overturn the presumption of regularity in the conduct of her command’s processing of the applicant for separation. The applicant’s allegations of hazing and abuse of authority in awarding the applicant’s characterization of service did not convince the Board that her discharge was inequitable or improper. By her own admission, the applicant was court martialed during her final enlistment resulting in her reduction in rank from E-5 to E-4 (as reflected on her DD-214). The Board did not have the report of the court martial to review and therefore assumes regularity in the conduct of governmental affairs. Relevant and material facts stated in a court martial specification shall be presumed as established facts by the NDRB. In addition, the Board does not consider the circumstances surrounding the applicant’s stated condition and implied incorrect diagnosis to be of sufficient nature to warrant an upgrade to her characterization of service. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice 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, or 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to her discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
18 Aug 95 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

B. 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.

C. 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.

D. 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.

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 “ afls10.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      

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