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USMC | DRB | 2008_Marine | MD0801600

Original file (MD0801600.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080723

Characterization of Service Received:

Narrative Reason for Discharge: CONVENIENCE OF THE GOVERNMENT
Authority for Discharge: MARCORSEPMAN 6203.2

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 20000307 - 20000322                Active:

Period of Service Under Review:
Date of Enlistment: 20000323     Period of E nlistment : Years Months     Date of Discharge: 20030115
Length of Service : Y ea rs M on ths 22 D a ys     Education Level:        Age at Enlistment:
AFQT: 44 MOS: 3533        Highest Rank: Fitness R eports:
Proficiency/Conduct M arks (# of occasions): ( ) / ( )
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA / CONF : 20010706-20010709 (3 days)

NJP :
- 20011214 : Art icle 86 (UA , for 3 days)
Awarded : Susp ended:

S CM : SPCM: CC:

6105 Counseling : 3
- 20010108: Failure to return from liberty on time (second incident) .
- 20020611 : For failure to comply with treatment plan for chronic lumbar strain of right knee .
- 20021115: Recommended for admin separation due to chronic lumbar strain of right knee.

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 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. Unjust discharge due to an isolated incident.

Decision

Date 20081030 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall CONVENIENCE OF THE GOVERNMENT .

Discussion

: ( ) . T he Appl icant claims he was discharged because he went UA to care for his sick father and this was an isolated incident. 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 . The Applicant’s service was marred by three retention warnings and one NJP for violation of the U niform C ode of M ilitary J ustice (UCMJ): Article 86 (UA) . He was administratively separated under the Convenience of the Government , not a Disability , provision of the Marine Corps Separations Manual due to his chronic knee pain ; not because he went UA to care for his sick father. A thorough review of the Applicant’s Service and Medical records shows o n 2 October 2001 he was put on limited duty for six months due to chronic pain in his right knee as a result of a fall . Th e Applicant showed no improvement so his case was referred to the Naval Physical Evaluation Board in Washington D.C. On September 17 , 2002 he was the subject of an informal Ph ysical Evaluation Board Hearing and was found fit to continue on active duty. Despite undergoing 23 months of treatment for tendonitis in his right knee and being placed on extensive limited duty , the Applicant was still in considerable pain and showed no improvement. The Applicant stated this pain was preventing him from fulfilling hi s military training obligations. His command agreed and he was administratively separated in January 2003 for a physical condition not a disability.

For the information of the Applicant, an administrative discharge is not punishment. The decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or non - judicial punishment. The characterization of service is a description of the total service provided during the member’s active duty time. An “ Honorable ” discharge is appropriate when the quality of the service member’s service has met the standards of acceptable conduct and performance of duty for military personnel. A “ General ( U nder H onorable C onditions) ” discharge is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the service member’s military record. His conduct while on active duty met the criteria for a “ General ( U nder H onorable C onditions) ” discharge due to his Article 86 violation. The Board determined an upgrade w ould be inappropriate.

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. 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 .

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 or is referred to a court-martial fo r 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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USMC | DRB | 2008_Marine | MD0801600

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