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USMC | DRB | 2009_Marine | MD0900061
Original file (MD0900061.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081009
Characterization of Service Received:
Narrative Reason for Discharge: DISABILITY, SEVERANCE PAY
Authority for Discharge: MARCORSEPMAN 8401 (DISABILITY, SEVERENCE PAY)

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    20020329 - 20020923     Active: 

Period of Service Under Review:
 Date of Enlistment: 20020924      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 20060715       H ighest Rank:
Length of Service: Years Months 15 D ays
Education Level: +      AFQT: 69
MOS: 0621
Proficiency/Conduct Marks (# of occasions): ( ) / ( )   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF: 20040928 - 20040929 (2 days)
20051129 – 20060104 (36 days)
NJP:
- 20050523 : Article 108 (Took a 9MM round and disposed of it into an ignited burn pit)
Article 134 (Endangering himself and others, by improperly disposing of the 9MM round)
Awarded: Suspended:

- 20040 301: Article 86 (UA, failure to go at the time prescribed to his appointed place of duty, section formation)
Article 92 (Failure to obey by lawful order, wrongfully not shaving)
 Article 108 (Through neglect suffer a bayonet [valued $42.83] and military identification card to be lost),
2 specifications
Awarded: Suspended:

- 20031023 : Article 111 (Physically control a vehicle while impaired by alcohol)
Awarded: Suspended:

- 20060130: Article 86 (UA) 20051129 to 20060104 (36 days)
Article 89 (Disrespectful toward a Captain)
Awarded: Suspended: None
SCM: SPCM: CC:

Retention Warning Counseling:

- 20031105 :      For continuously display a lack of initiative, inability to follow orders and a blatant disregard for non commissioned officers in his section. He is disrespectful in manner and nature on a routine basis, and gives no indication that he has learned from his mistakes. SNM received NJP for violation of Article 92

Retention Warning Counseling:

         for which he was placed on Battalion restriction. SNM signed in late for restriction on 20031103 at 0720 and 20031026 at 0940.
- 20031105 :      For having a K-Bar in the unsecured wall locker of his barracks. This blatant disregard for rules and regulations is not acceptable and will not be tolerated. SNM is also informed that further incidents of this nature may result in NJP and other administrative action to include but not limited to administrative separation. Corrective actions: Utilize good judgment, adhere to rules, regulations and orders all Marines are tasked to obey. SNM has been counseled and instructed on his deficiencies.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 2002 09 24 ”
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:         Service/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 Congress member:

Other Documentation:

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F) effective 1 September 2001, paragraph 8401 DISABILITY DISCHARGE WITH SEVERANCE PAY.
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 violations of the UCMJ: Articles 86, Article 89, Article 92, Article 108, Article 111 and Article 134.


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

Applicant’s Issues

 1. Discharge due to medical reasons, not misconduct.

Decision

 Date: 20090409            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall DISABILITY, SEVERANCE PAY .
Discussion

: ( ) . The Applicant contends his “discharge was due to medical reasons and not bad conduct or unhonorable accomplishments” and he “had no disciplinary problems.” 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 record of service was marred by two retention warning counseling’s and four NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, failure to go to appointed place of duty; UA, absence without leave, 2 days and 36 days); Article 89 (Disrespect to a superior commissioned officer, a Captain); Article 92 (Failure to obey order or regulation, not shaving); Article 108 (Military property: loss, damage, destruction, disposition; disposed of a 9MM round into an ignited burn pit, lost a bayonet valued at $42.83, lost his military ID card); Article 111 (Drunken driving) and Article 134 (Endangering himself and others, related to Article 108 charge). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.

An informal physical evaluation board found the Applicant unfit for duty by reason of a physical disability on 03 April 2006, and he was subsequently discharged with a narrative reason for separation of “Disability, Severance Pay.” For the edification of the Applicant, the characterization of service is based on a Marine’s performance and conduct and not necessarily related to the narrative reason for separation. W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. Generally, Marines with proficiency marks of 3.0 or higher and conduct marks of 4.0 or higher are given Honorable discharges. The Applicant’s overall marks for proficiency and conduct were 3.5 and 3.2, respectively. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate; an upgrade would 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


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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