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USMC | DRB | 2007_Marine | MD0700039

Original file (MD0700039.rtf) Auto-classification: Denied

ex-PFC, USMC
MD07-00039

Current Discharge and Applicant’s Request :

Application Received:                               20 061004
         Characterization of Service:
         Basis for Discharge :                       CONDUCT-TRIABLE BY COURTS- MARTIAL
         Discharge Authority :                       MARCORSEPMAN 6419
         Duty Assignment/ Command at Discharge:    HQ&SVCBN, SOI, MCB, CAMPEN, CA 92055

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

Applicant’s Issues:
1. Incorrect Discharge Basis due to post Service Medical Diagnosis

Decision:
By a vote of 5-0, the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of 5-0, the Narrative Reason for Separation shal l change to SECRETARIAL AUTHORITY

Date of Decision:                                            20 070823
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES

Regarding propriety, the Board found the discharge:      I M Proper
Regarding equity, the Board found the discharge:         IM equitable

Issue 1 ( E quity). 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. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. The Applicant was seen by competent medical authority on several occasions for physical ailments with no mention of mental ailments. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Relief Denied

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption . The Board found the following inconsistency in the separations procedure. Documentation was accepted as factual by the Board that the Applicant committed two violations of the Uniform Code of Military Justice Article 86 { Unauthorized Absence (more than 3, not more than 30 days ) } . The Board found no offenses that met the criteria for a punitive discharge (Per Appendix 12 of the MCM ). T he Applicant therefore could not request Separation in Lieu (SILT) of a Trial by Court-Martial and as a result the Characterization of the Discharge of U nder than Honorable Conditions in Lieu of Court-Martial cou ld not be granted. The Board directs the Applicant’s Discharge is characterized by “General ( Under Honorable Conditions ) ” and the Narrative Reason of “Secretar ial Authority ”.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               19911107 - 19911120

Period of Service Under Review:
Date of Enlistment:                                 19911121
Years Contracted :
Date of Discharge:                                  19920724
Length of Service
         Active:                                     00 Yrs 06 Mths 15 D ys (does not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             Days UA: 31 Days Confinement: 14 Days

Education Level:
Age at this Enlistment:
AFQT:                                                 53
MOS:                                                  9971
Highest Rank:
Proficiency/Conduct marks (# of occasions):               4.2 ( 1 ) / 4.2 ( 1 )
Fitness reports available for review?

Awards and Decorations (as listed on the DD Form 214): RIFLE EXPERT BADGE

Service Record Entries Related to Characterization of Service or Basis for Discharge
Non Found

Elements of Discharge: [SEPARATION IN LIEU OF TRIAL]

Date Charge(s) Preferred:                                   19920715
Charge(s) and Specification(s):
Article 86: Did on or about 19920426, without authority, absent himself from his organization until on or about 19920512.
Article 86 : Did on or about 19920517, without authority, absent himself from his organization until on or about 19920601.

Date Applicant Submitted SILT request:            19920617
         Consulted with or Waived Counsel:
         Acknowledged Understanding Elements:
         Acknowledged Guilt to:                     Article(s) 86
                  BCD/DD authorized for offense(s)
         Acknowledged Consequences of OTH:
         Type of Characterization Requested:

Commanding Officer Recommendation (date):        ( UNDATED )
Separation Authority (date):                       COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON ( 19920714 )
         Reason for Discharge directed:
         Characterization directed:
Date Applicant Discharged :                         19920724

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               2

Related to Period of Service Under Review:
         From Service and/or Medical Record:               Other Records:

Related to Other Period(s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                          Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant:             From Representative:
        Other Documentation (Describe)

Pertinent Regulation/Law

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.

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, provi ded 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 grante d 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 | 2007_Marine | MD0700039

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