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USMC | DRB | 2008_Marine | MD0800973
Original file (MD0800973.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080311
Characterization of Service Received:
Narrative Reason for Discharge:  Erroneous Enlistment - Marine failed to meet regulation physical standards for enlistment. The Marine was not aware of the defect and the defect was not detected or waived at MEPS.
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19970424 - 19971007              Active:

Period of Service Under Review:
 Date of Enlistment: 19971008               Period of Enlistment : Years Months    Date of Discharge: 19971112
Length of Service: Yrs Mths 05 D ys     Education Level:         Age at Enlistment:       AFQT: 35
MOS: 9900        Highest Rank:                  Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      / Awards and Decorations (per DD 214): NONE

 Periods of UA/CONF:

MEDICAL  1
 19971028         Diagnosis: Symptomatic kyphoscoliosis, EPTS.
         Disposition: Referred for administrative/entry level separation.
NJPs:   

SCMs:   

SPCMs:  

CC:     

6105 Counseling:

Types of Documents Submitted/reviewed

 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 Representation:              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Applicant desires a change in his RE code so he can reenlist.
2. Applicant feels he was erroneously discharged and feels he should receive a General (Under Honorable Conditions) characterization of service.

Decision


 Date: 20080814            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ERRONEOUS ENLISTMENT.

Discussion

 : ( ) 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 , specifically the paragraph concerning s regarding .

: ( ) . The Applicant states he was erroneously given an entry level separation for a pre-existing disqualifying medical condition which precluded future military service. The Applicant desires the removal of this medical information and an upgrade to the characterization of his discharge from “UNCHARACTERIZED” to “GENERAL (UNDER HONORABLE CONDITIONS)”. For the information of the Applicant, members notified of intended recommendation for discharge within the first 180 days of continuous active duty service are eligible for an uncharacterized or entry-level separation as their 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 one month of service to the U. S. Marine Corps to warrant such a change and the discharge was proper and in accordance with established procedures and policy found in the Marine Corps Separation and Retirement Manual, MCO P1900.16F, paragraph 1004.5. As a result, the Board determined an upgrade was not warranted.

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. A review of the Applicant’s brief military record indicates within one week of initially reporting to recruit training he reported to active duty sick call and complained of back pain. He admitted to having back pains prior to enlistment. Eleven days later, he again reported to sick call complaining of persistent back pain. Medical X-rays revealed a condition known as dextroscoliosis, which medical authorities deemed would interfere with the reasonable performance of his military training and duties. As a result, he was given an entry level separation since he was not physically qualified to continue military training or follow on service. The Applicant does present documentation from a civilian physical who claims his spinal curvature is less than 20 degrees and that this should not cause him any pain or preclude him from military service. Additionally, the Applicant enclosed a fact sheet found on the internet from “USMILITARY.ABOUT.com” which outlines disqualifying medical conditions with relationship to the spine, specifically stating the curvature of the spine must be greater than 20 degrees to render the member disqualified from military service.

For the edification of the Applicant, military entrance physicals must be given by trained military physicians or government contract civilian physicians. A health condition which is acceptable in a civilian environment and by a civilian physician may impact a service member’s ability to perform his military duties which may be unfamiliar to civilian physicians not associated with the demands of military service. In order for the Applicant to reenlist he would need to contact a local recruiter again and ask for a medical waiver and to be reexamined by an approved Military Entrance Processing Station (MEPS) physician. The Applicant would need to be found fit for duty based on his current physical condition. The NDRB is unable to dispute the initial medical finding based simply on the paperwork submitted and approve the Applicant for reenlistment.



         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

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual,(MCO P1900.16E, effective 18 August 1995 until 31 August 2001), 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, 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 or is referred to a court-martial 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 other medical related reasons.” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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