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USMC | DRB | 2006_Marine | MD0601152

Original file (MD0601152.rtf) Auto-classification: Denied

ex-, USMC
MD06-01152

Current Discharge and Applicant’s Request :

Application Received:                               20 060828
Characterization of Service:                       UNDER
Narrative Reason for Separation:                           UNSAT PARTICIPATION IN READY RESERVE
Discharge Authority :                                MARCORSEPMAN 6213
Last Duty Assignment/ Command at Discharge:       HEADQUARTERS FOURTH MARINE DIVISION, MARINE FORCES RESERVE, NEW ORLEANS

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
Representation:

Decision:

Date of Decision:                                            20070719
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           NO
Complete Discharge Package:                        YES

Regarding propriety, the Board found the discharge:      IM PROPER
Regarding equity, the Board found the discharge:         IN EQUITABLE

By a vote of 3-2 the Characterization shall change to HONORABLE
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY

Applicant’s Issues, as summarized by the Board:
1. Re-enlistment opportunity .
2. Misled by command during injury period.

Summary of Service:

Prior Service:
Inactive: NONE
Active:

Period of Service Under Review:
Date of Enlistment:                                 19980930
Years Contracted :
Date of Discharge:                                  20030710
Length of Service
         Active:                                     00 Yrs 05 Mths 01 D ys (Does not exclude lost time)
         Inactive:                                            04 Yrs 04 Mths 10 D ys

Time Lost During This Period:

Education Level:                                    GED
Age at this Enlistment:
AFQT:                                                 42
MOS:                                                  0331
Highest Rank:

Proficiency/Conduct marks (# of occasions):               N ONE IN RECORD

Aw ards and Decorations (as listed on the DD Form 214):   MARKSMAN RIFLE BADGE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20000706:        Applicant’s drill status changed to T emporarily N ot P hysically Qu alified (TNPQ) to participate as a drilling Mari n e Corps Reservist. Light duty not authorized. Monthly updates required. Provide copies of all civilian physician evaluations concerning back pain since 20000331 and be evaluated on a monthly basis. Failure to comply may result in administrative action. A “found un fit for duty ” by 20001015, will result in N ot P hysically Q ualified (NPQ) status, and a fter review , may result in medical discharge.

20000928:        First Letter of Needed Medical Information due to Non-compliance issued. Medical information for July and August 2000 not received. D ocumentation from civilian doctor or therapist for the periods mentioned above required. An evaluat ion by a health care provider must be submit ted within 30 days from the date of this letter t o further determin e retention status.

20030406 :        Counseling: Advised of deficiencies in performance and conduct . Obligation to make up unexcused absences from drill. Required to make up 12 drills . If required drills not made up, Administrative Separation will be executed.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20000327:        Applicant injures back in a home gym acci d ent.

20000329:        Chiropractic care initial visit and treatment for back pain. Has 22 chiropractic visits until 2000517.

20010924:        Affinity Medical Group letter stating that the Applicant is under medical care for a back injury.

20011011:        Occupational Health review for back pain.

20020225:        Affinity Medical Group re-evaluation letter stating no significant change to Applicant’s chronic back condition.

20020709:        Affinity Medical Group re-evaluation letter stating Applicant’s chronic back condition has not changed.

20020930:        Affinity Medical Group re-evaluation for a chronic back condition.

20021029:        Affinity Medical Group letter outlining care given since September 200 1 for a chronic back condition.

20030106:        Affinity Medical Group re-evaluation letter stating Applicant’s chronic back condition has not changed.

20030129:        Affinity Medical Group re-evaluation letter stating Applicant’s chronic back condition has shown signs of improvement. Allowing Applicant to march with a pack to see how the back tolerates the activity.

Elements of Discharge: [ IN VOLUNTARY]

Date Notified:                                       20030322
Basis for Discharge:

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:
Record Supports Narrative Reason:                          YES

Date Applicant Responded to Notification:                 20030322
Rights Elected at Notification:
Consult with Counsel
Obtain Copies
Submit Statement(s) (date)
Administrative Board

Commanding Officer Recommendation (date):        ( 20030629 )
SJA review (date):                                  ( 20030702 )
Separation Authority (date):     COMMANDING GENERA., HEADQUARTERS, FOURTH MARINE DIVISION, NEW ORLEANS ( 20030709 )
Narrative Reason directed:                                  IN READY RESERVE
Characterization directed:                                  OTHER THAN HONORABLE
Date Applicant Discharged:                         20030710

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            72
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation (Describe Below)                      18

Total Number of Pages:                            91

D escription of Other Documentation:
        Applicant’s letter to Congressman G_ (2 pages)
         Applicant’s civilian work leave requests to cover drill periods (16 pages)

Applicant’s Issues as Summarized by th e Board :
1. Re-enlistment opportunity.
2. Misled by command during injury period.

Issues 1: The Board determined that th is Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding this issue.

Decisional Issues:
The Board accepted Issue 2 for consideration.

Issue 2 ( / Propriety / Equity) The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. In reviewing discharges, the Board 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. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case. A particular circumstance of interest was the counseling entry that the Applicant signed after the administrative separation paperwork was initiated. This entry clearly showed the command’s willingness to allow the Applicant the opportunity to make up missed drills and be retained in service. The Applicant’s documentation showed that he did make up the drill periods in question. The NDRB noted that there were improprieties in the Applicant’s discharge action, is convinced that this procedural error was prejudicial to the Applicant, and therefore an inequity in the characterization of the Applicant’s service did occur. Relief approved .

In cases where no other reason for separation set forth in the Naval Military Personnel Manual or Marine Corps Separation and Retirement manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. The Applicant’s Commanding Officer determined the Applicant had no potential for further Naval service based upon unsatisfactory performance in the reserves. The NDRB believes that the Applicant’s medical issue and treatment record and participation in the reserves are properly documented. T here is no other narrative reason for separation which accurately describes the reason the Applicant was separated. Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority.

Pertinent Regulation/Law

A. Paragraph 6213, UNSATISFACTORY PARTICIPATION IN READY RESERVE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 - Present.

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.

ADDENDUM: Information for the Applicant

Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: 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

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USMC | DRB | 2006_Marine | MD0601152

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