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USMC | DRB | 2008_Marine | MD0800446

Original file (MD0800446.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080108

Characterization of Service Received: NOT APPLICABLE

Narrative Reason for Discharge: NOT APPLICABLE

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to: BEST INTEREST OF THE SERVICE

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19920331 - 19930108              Active:
Period of Service Under Review:
Date of Enlistment: N/A          Period of enlistment : 0 Years Months             Date of Discharge: N/A
Length of Service : Yrs Mths 00 D ys      Education Level:         Age at Enlistment:       AFQT:
MOS: N/A         Highest Rank: N/A                 Fitness reports:
Proficiency/Conduct marks (# of occasions):      N/A
Awards and Decorations ( per DD 214): N/A

Periods of UA / CONF :

NJPs :

6105 Counseling :

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

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

Applicant’s Issues

1.       Separation from the Delayed Entry Program was unfair and unjust
2.       Post Service

Decision

Date: 20 08 0313             Location: Washington D.C         R epresentation :

By a vote of the ENTRY-LEVEL separation remains unchanged

Discussion

Issue 1: ( ). The Applicant contends that he was unfairly and unjustly discharged from the Delayed Entry Program due to a misdiagnosis. The Board found no DD-214 for the Applicant because the Applicant never served on active duty.

The Board found that the Applicant’s service record consisted of a Delayed Entry/Enlistment Contract stating that the Applicant was discharged from the Delayed Entry Program on 19930108 due to a medical disqualification that existed prior to his attempt to enlist . Additionally, the Applicant received a letter from his Marine Corps Recruiting Station that informed the Applicant that he was separated due to a medical disqualification , that he was receiving and “entry- level” separation , and that should the Applicant eliminate his disqualification and desire to reenter , to present the letter to the nearest Marine Corps Recruiting Station.

MARCORSEPMAN 6204. 2 e states that a member in the Delayed Entry/Enlistment program can be separated because of ineligibility. In this particular situation, t he ineligibility was established when the recruiter became aware of a diagnosis that the member no longer me t me dical qualifications. Headquarters Marine Corps policy concerning separation during the Delayed Entry/Enlistment period, is that the discharge is considered and “entry level” separation.

MARCORSEPMAN 6214 states that a “Best Interests of the Service” separation may be directed by the Secretary of the Navy before the expiration of the member’s term of service and that requests for this type of separation should be forwarded to the Secretary of the Navy. Separation under this provision should only be made in cases not covered by any other provisions of MARCORSEPMAN 6200.

The Board found that the Applicant could not be assign ed an “Honorable” characterization of service because the Applicant had not serve d any time on active duty in which to characterize .

Issue 2: ( ). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Board determined that the Applicant’s separation was not unfavorable and was not a result of misconduct . Therefore, post service factors could not mitigate the characterization of service received by the Applicant.

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, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable .

Pertinent Regulation/Law

A . Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 890627 until 950817, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

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 | 2008_Marine | MD0800446

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