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USMC | DRB | 2007_Marine | MD0700125
Original file (MD0700125.rtf) Auto-classification: Denied
ex-, USMC
MD07-00125
Current Discharge and Applicant’s Request
Application Received: 20061101   Characterization Received:
Narrative Reason: CONDITION NOT A DISABILITY Authority: MARCORSEPMAN PAR 6203.2

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Educational benefits
                           2. Post service

Decision

 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 CONDITION NOT A DISABILITY .
Date: 20 070830      Location: Washington D.C. The Board found that

Discussion

 Issue(s) 1 : The Board determined that th is I ssue is not an i ssue 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.

Issue 2 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the 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. Outstanding post-service conduct, 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, is considered. The Applicant provided one letter from an employer and one criminal history report as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, and educational pursuits . The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under honorable conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by three discharge warnings and one nonjudicial punishment for UCMJ Article 91, Disrespect towards a superior noncommissioned officer. An upgrade to honorable would be inappropriate .
Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20020619 - 20020811     Active:         
Period of Service Under Review:
 Date of Enlistment: 20020812      Years Contracted : ; Extension:          Date of Discharge: 20051205
Length of Service : 03 Yrs 03 Mths 24 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 55          MOS: 0161 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4. 4 ( 10 ) / 4.3 ( 10 )  
Awards and Decorations ( per DD 214): GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, RIFLE MARKSMAN BADGE, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20041118 :        CO's NJP -- Viol UCMJ Art icle 91 – Disrespect in language to a noncommissioned officer . Awarded - RIR ( E-2 ).
20041118:        MARCORSEPMAN 6105 counseling for d isrespect toward a noncommissioned officer. Discharge warning issued.

200504 07 :        Department Head, Military Medicine, Naval Hospital, Cherry Point, NC Medical Recommendation: Applicant diagnosed with chronic lumbar back pain. He has a history of lumbar back pain that has interfered with the performance of his duties. He has completed his treatment with Carteret Pain Medicine Clinic with only minimal improvement in his symptoms. During his treatment, he has also had light and limited duty of sufficient time to allow for rehabilitation of the condition. Applicant’s clinical exam and results of radiological studies do not support a medial board. Per the reference, member is not considered physically disabled. Applicant manifests a long standing complaint of lumbar back pain of such severity as to interfere with serving adequately in the military. As a result, administrative separation for non-compatibility with Military Service (“Unsuitability”) is recommended if the patient is unable to perform the duties of his MOS and those required of all members of the United States Marine Corps.
20050427:        MARCORSEPMAN 6105 counseling for u nsatisfactory performance on 20040825 , failed a scheduled semi-annual PRT. Discharge warning issued.


20050509:        MARCORSEPMAN 6105 counseling for p hysical condition not a disability. On or about 20050412 you were diagnosed with chronic lumber back pain. You completed your treatment with minimal improvement in your symptoms. You were given light and limited duty of sufficient time to allow for rehabilitation of the condition. Your clinical exam and results of radiological studies do not support a medical board, and are therefore not considered medically disabled. Discharge warning issued.


20050725:        MARCORSEPMAN 6105 counseling for p hysical conditions not a disability . S pecifically, on or about 20050412 you were diagnosed with chronic lumbar back pain. Applicant states that despite the treatment he continues to have pain. Advised being processed for involuntary administrative separation.


Discharge Process

 Date Notified:   20050729
Basis for Discharge:     
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20050729
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         )
         Administrative Board                       NOT APPLICABLE

Commanding Officer Recommendation (date):        ( 20050729 )
SJA review (date):       ( 20051114 )
Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS AIR STATION, CHERRY POINT ( 20051130 )
Basis for discharge directed:  
Characterization directed:     
Date Applicant Discharged:       20051205


Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F ) , effective 1 September 2001 until p resent, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91.      


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 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 : 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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