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USMC | DRB | 2007_Marine | MD0700157
Original file (MD0700157.rtf) Auto-classification: Denied
ex-, USMC
MD07-00157
Current Discharge and Applicant’s Request
Application Received: 20061108   Characterization Received:
Narrative Reason: DISABILITY, SEVERANCE PAY               Authority: MARCORSEPMAN 8401

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Record of service.
                           2. In service injury inhibited my ability to physically train and comply with weight standards.

Decision

 By a vote of 3 - 2 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS) .        
By a vote of 5-0 the Narrative Reason shall remain DISABILITY, SEVERANCE PAY .
Date: 20 071011                                             Location: Washington D.C.

Discussion

Issue 1-2 (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 review ed all of the available records , supporting documents, facts, e lements of d ischarge , evidence submitted by the Applicant , and circumstances unique to this case . Despite the documented in-service injury which put the Applicant in a Light Duty status and the ensuing unsuccessful surgery , the Board determined that the Applicant was still responsible for keeping within weight standards. Accordingly, the Board found the characterization of service equitable and in accordance with regulations.

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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that


Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20000228 - 20000604             
Period of Service Under Review:
 Date of Enlistment: 20000605               Years Contracted :        Date of Discharge: 20020630
Length of Service : 02 Yrs 00 Mths 26 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 70          MOS: 1341 Highest Rank:
Proficiency/Conduct marks (# of occasions):      3.9 ( 5 ) / 3.8 ( 5 )    
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, RIFLE SHARPSHOOTER BADGE


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


 2000 602 :         Weight waiver requested from Recruiting Station for Applicant being 17 pounds over standards. Applicant had lost 10 pounds since starting DEP.

20010117:        Applicant’s last PFT.

2001 0212 :        Applicant last day on full duty status.
2001 0713 :        MARCORSEPMAN 6105 counseling for failure to make satisfactory progress while assigned to the weight control or military appearance program. Discharge warning issued.
2001 1011 :        MARCORSEPMAN 6105 counseling not recommended for promotion Oct – Dec 2001 due to being on the weight control program.

20011116 :        MARCORSEPMAN 6105 counseling for violation of Article 134 - worthless checks or failure to maintain funds. Discharge warning issued.

20011214:        Medical Record: Medical B oard report : Unable to lift heavy objects, participate in organized physical training, lifting, sit ups, or physical fitness testing.
         Diagnosis: Chronic right testalgia, DNEPTE, CD, epididymalgia, DNEPTE, CD.
         Recommendation: Refer to the Physical Evaluation Board for review and adjudication.

20011228:        Commanding Officer’s non medical assessment. Applicant has followed therapy regimen and is not pending disciplinary action.

200 20117 :        MARCORSEPMAN 6105 counseling for the 3.0 conduct mark your received due to recent conduct, negative influence on others and moral fitness. Applicant not available for signature. Discharge warning issued.

20020426:        Medical visit for chronic right hemiscrotal pain. No improvement. Unable to lift or PT. Current height/weight is 67” and 227 pounds.
20020523:        Physical Evaluation Board notification of decision: Applicant found unfit to perform duties due to a physical disability. Disposition: Separate applicant with severance pay without further disability benefits.


Discharge Process

 Date Notified:   NOT FOUND IN RECORD
Basis for Discharge:     
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

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

Commanding Officer Recommendation (date):       
SJA review (date):      
Separation Authority (date):     NOT FOUND IN RECORD
Basis for discharge directed:  
Characterization directed:     
Date Applicant Discharged:       20020630

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 01 September 2001, paragraph 8401 DISABILITY DISCHARGE WITH SEVERANCE PAY

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 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, 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.
Employment/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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