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USMC | DRB | 2007_Marine | MD0701167
Original file (MD0701167.rtf) Auto-classification: Denied
ex-, USMC
MD07-01167
Current Discharge and Applicant’s Request
Application Received: 20070821   Characterization Received:
Narrative Reason: CONDITION NOT A DISABILITY     Authority: MARCORSEPMAN 6203.2

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Involuntarily discharged for a physical disability and therefore the discharge should be honorable
                          

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall CONDITION NOT A DISABILITY.

Date: 20 08 0124                      Location: Washington D.C.         Representation :

Discussion

 Issue 1: ( ). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An general (u nder 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award one nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 92 (Failure to obey an order or regulation). Violation of UCMJ Article 92 is considered a serious offe nse for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

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)     19990506 - 19990829              Active:
Period of Service Under Review:
 Date of Enlistment: 19990830               Years Contracted :                 Date of Discharge: 20020805
Length of Service : Yrs Mths 06 D ys                        Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 74          MOS: 4066 Highest Rank:
Proficiency/Conduct marks (# of occasions):      N/A / N/A            Fitness reports :
Awards and Decorations ( per DD 214): Rifle ,     NDSM, SSDR

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

 20001113 :        NJP -- Viol UCMJ Art. 92 - Failed to obey an order or regulation by consuming alcohol under the legal age of 21 years.
         Awarded - FOP ($ 585.00 ) for ( 2 months); Restr for ( 45 days); Extra duties ( 45 days).
20020408:        Abbreviated Limited Duty Medical Board Report: Diagnosis: (1) Left Anterior knee pain - nonspecific. (2) PPFS - failed physical therapy. Limited duty for 8 months.

 20020510:        Medical Record: Reason for visit: Concern about LIMDU status.
         Diagnosis: Chronic Left Anterior knee pain - uncertain ethnology.
         Recommendation: No medical condition, per ortho warranting surgery. Administrative separation for medical condition not a disability recommended, per applicant’s requests if RA symptoms increase, recommend further ______ in the future.

 20020510:        Medical Board’s Final Disposition: Applicant found fit for full duty. Per orthopedic opinion (20020308), administrative separation recommended for medical condition not warranting - not a disability.

20020605 :        MARCORSEPMAN 6105 counseling concerning process for administrative separation for a physical condition not a disability as per Medical Officer’s evaluations conducted on 20020329 and 20020402.

Discharge Process

 Date Notified:   20020620
Basis for Discharge:     
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20020620
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20020605 )
SJA review (date):      
Separation Authority (date):     BASE COMMANDER, MARINE CORPS BASES ( 20020628 )
 Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20020805

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 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 92.

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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