Upgrade.Vet

USMC | DRB | 2007_Marine | MD0701229

Original file (MD0701229.rtf) Auto-classification: Denied

ex-PVT, USMC

Current Discharge and Applicant’s Request

Application Received: 20070907

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN 6206.3

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to: MEDICAL

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19930405 - 19930718
Period of Service Under Review:
Date of Enlistment: 19930719               Period of enlistment : Years Months             Date of Discharge: 19940510
Length of Service : 00 Yrs 09 Mths 22 D ys         Education Level:         Age at Enlistment: 19     AFQT: 47
MOS: 9971        Highest Rank: P FC
Proficiency/Conduct marks (# of occasions):      4.2 (2) / 4.2 (2)
Awards and Decorations ( per DD 214): NDSM , Rifle MM

Periods of UA / CONF :

NJPs :

6105 Counseling : 3
         19940114 : For lack of judgment, responsibility, and maturity for failing to return from leave.
19940210: For failing military performance standards; PFT.
19940322: For failing military performance standards; PFT.

Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Since discharge, discharge has been found to be medical related.

Decision

Date: 20 08 0509 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall UNSATISFACTORY PERFORMANCE .

Discussion

Issue 1 (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 the discipline standards of the Naval service. During Board reviews the government is presumed to conduct its affairs with regularity unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

The Applicant states since his discharge his disability has been found to be military related. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct , discipline and performance . The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s conduct. There is credible evidence in the record the Applicant had unsatisfactory performance. The Applicant was seen numerous times by competent medical authority during his 9 months of service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that the Veterans Administration’s medical review takes precedence over the military medical documentation or the military discharge. The evidence submitted was insufficient to establish the existence of probable material error or injustice. The Board determined the original narrative reason for discharge was proper.

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 negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. T he Applicant’s service was marred by three discharge warnings for unsatisfactory performance. Based on this evidence the Board determined a n upgrade or change is not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found that

Pertinent Regulation/Law

A. Paragraph 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 920309, except for subparagraph 1, which was retroactively changed by ALMAR 57/93, effective 920310) .

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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USMC | DRB | 2007_Marine | MD0701229

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