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USMC | DRB | 2007_Marine | MD0700584
Original file (MD0700584.rtf) Auto-classification: Denied
ex-PVT, USMC
MD07-00584
Current Discharge and Applicant’s Request
Application Received: 20070328   Characterization Received:
Narrative Reason: ENTRY LEVEL PERFORMANCE AND CONDUCT    Authority: MARCORSEPMAN 6205      

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Employment opportunities.
                           2. Inequitable characterization of service.

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall ENTRY LEVEL PERFORMANCE AND CONDUCT.      

Date: 20 071115    Location: Washington D.C.       Representation :

Discussion

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( Equity ). By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his 4 months in the military prior to notification of separation to warrant a change of discharge to honorable. T he Applicant’s service was marred by multiple counseling entries regarding his failure to uphold physical standards. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps. Therefore the Board found his uncharacterized characterization appropriate.

The Applicant should be aware that, with respect to non - service-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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) 19950221 - 19950326                    
Period of Service Under Review:
 Date of Enlistment: 19950327           Years Contracted : 4 ; Extension:          Date of Discharge: 19950726      
Length of Service : 00 Yrs   04 Mths    00 D ys          Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 1 7     AFQT: 77          MOS: 9971 Highest Rank: P VT
Proficiency/Conduct marks (# of occasions):      NONE    
Awards and Decorations ( per DD 214): NONE

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

 19950724 :        MARCORSEPMAN 6105 counseling for inability to adapt to military environment. Continued substandard performance and conduct could result in administrative separation.

Discharge Process

 Date Notified:   19950724
Basis for Discharge:      ENTRY LEVEL DUE TO ENTRY LEVEL PERFORMANCE AND CONDUCT
        
Least Favorable Characterization:        ENTRY LEVEL SEPARATION
Commanding Officer’s Intended Recommendation:    ENTRY LEVEL SEPARATION

Date Applicant Responded to Notification:                  19950724      
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ENTRY LEVEL SEPARATION ( 19950725 )
SJA review (date):      
Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS RECRUIT DEPOT, SAN DIEGO ( 19950725 )
Basis for discharge directed:   DUE TO INCAPABILITY TO PERFORM TRAINING
Characterization directed:      UNCHARACTERIZED
Date Applicant Discharged:       19950726      

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 P1900.16D, effective 890627), paragraph 6205, ENTRY LEVEL PERFORMANCE AND CONDUCT

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, 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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