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USMC | DRB | 2007_Marine | MD0700146
Original file (MD0700146.rtf) Auto-classification: Denied
ex-, USMC
MD07-00146
Current Discharge and Applicant’s Request
Application Received: 20061113   Characterization Received:
Narrative Reason: PHYSICAL STANDARDS Authority: MARCORSEPMAN PAR 6203.2

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Montgomery GI Bill benefits.
                           2. Active duty injury prevented me from full participation as a Marine.

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 change to: PHYSICAL CONDITION NOT A DISABILITY.

Date: 20 070906      Location: Washington D.C. The Board found that

Discussion

Issue(s) 1 : The Board determined that this 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 page.

Issue 2 (Equity). The requirements for a narrative reason of Condition Not a Disability are whenever a Marine’s performance deteriorates or has an adverse effect on others in the unit. When the command suspects that a physical condition interferes with a Marine’s effective performance of duty, the Marine should be referred to appropriate medical authority. Separation proceedings are authorized after an examination by a medical officer confirms that the Marine is suffering from a physical condition apparently beyond the individual’s control. The Applicant clearly falls into this description.

T he 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 . 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 two discharge warning s and one nonjudicial punishment for a violation of UCMJ Article (s) 91, 92, and 134. V iolation s of Article (s) 91, 92, and 134 are considered s erious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate .

The NDRB noted an administrative error in the assignment of the narrative reason for discharge. On all discharge documents, the narrative reason was clearly directed as Physical Condition Not a Disability. The directed separation code of JFT1 is in error thereby erroneously assigning a narrative reason of Physical Standards.


Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20000721 - 20010625             
Period of Service Under Review:
 Date of Enlistment: 20010626      Years Contracted : ; Extension:          Date of Discharge: 20031222
Length of Service : 02 Yrs 05 Mths 27 D ys          Lost Time : NONE Days UA: Days Confine d :
Education Level:         Age at Enlistment: 18     AFQT: 74          MOS: 3531 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.1 ( 1 ) / 4.1 ( 1 )    
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, RIFLE MARKSMANSHIP BADGE

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

 20011127 :        CO's NJP -- Viol UCMJ Art. 92 – Failed to obey order by having male visitor in her barracks room; viol UCMJ Art. 91 – Disobeyed MSgt W_’s order to not have male visitors or personnel in her barracks; viol UCMJ Art. 134 – Communicate a threat . Awarded - FOP ( $521.00 ) for ( 1 month) suspended for 6 months ; Restr for ( 25 days); Extra duties ( 25 days) .
20011211:        Forfeiture of pay awarded at NJP on 20011127 vacated due to continued misconduct.
20030624:        Applicant put on Limited Duty Board.

20031008:        Battalion Surgeon’s letter recommending administrative separation after being on limited duty with therapy for 6 months without improvement.

20031030:        MARCORSEPMAN 6105 counseling . Applicant is a single parent, must immediately be available for worldwide deployment, and must maintain a family care plan. Discharge warning issued.

20031015:        Orthopedic Department, Naval Hospital Camp Lejeune recommending administrative separation for reason of physical condition not a disability.

20031030 :        MARCORSEPMAN 6105 counseling . Applicant d iagnosed with patellofemoral pain syndrome in her right knee . Discharge warning issued.

20031112:        MARCORSEPMAN 6105 counseling . Applicant was placed on a limited duty board 20030624 and was diagnosed with patellofemoral pain syndrome in her right knee. There have been no signs of improvement within the 6 month period as specified by the Battalion Surgeon for corrective action. Applicant complied with the treatment plan provide by the medical personnel without success. Battalion Surgeon has recommended Applicant for Administrative Separation.
Discharge Process

 Date Notified:   20031121
Basis for Discharge:      PHYSICAL CONDITION NOT A DISABILITY
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20031121
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ELECTED (20031119)
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20031124 )
SJA review (date):       ( 20031203 )
Separation Authority (date):     COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT GROUP ( 20031209 )
Basis for discharge directed:   PHYSICAL CONDITION NOT A DISABILITY
Characterization directed:     
Date Applicant Discharged:       20031222

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) Staging Application


Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 September 2001 and Present), 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 (s) 91, 92, and 134.



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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