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USMC | DRB | 2009_Marine | MD0900073
Original file (MD0900073.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081017
Characterization of Service Received:
Narrative Reason for Discharge: PHYSICAL
Authority for Discharge: MARCORSEPMAN (PHYSICAL CONDITION NOT A DISABILITY)

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19991023 - 20000103     Active:  

Period of Service Under Review:
Date of Enlistment: 20000104     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20031120      H ighest Rank:
Length of Service : Y ea rs M on ths 17 D a ys
Education Level:        AFQT: 53
MOS: 0121
Proficiency/Conduct M arks (# of occasions): 3.9 ( ) / 3.9 ( )      Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoA

Periods of UA / CONF :

NJP:
- 20030725 :       Article 86 (UA ), 0701 20030623 to 0700 20030708 ( 15 days )
         Article 91 (Failed to obey a lawful order - to check out with the HQBN Officer of the Day prior to going on annual leave)
         Article 107 (False official statements) , 2 specifications
          Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20021108 :       For dereliction of duty, unsatisfactory performance of duties, inattention to detail, lack of reasonable effort, disregard for rules and regulations, minor disciplinary infractions, and poor attitude concerning your professional and technical responsibilities.
- 20030314 :       For your unauthorized and inappropriate use of a government computer. Specifically, you used your assigned government computer to view offensive material. This conduct is unacceptable and will not be tolerated.
- 20030711 :       For your assignment to the Marine Corps Body Composition Program. Specifically, you failed to maintain your body standards as required by MCO P6100.12. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the Marine Corps.
- 20031015 :       For Myofascial Pain Syndrome and low back pain.



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 Representat ion :   From Congress member :

Other Documentation :

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 .

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 violation of the UCMJ : Article 86 (UA ) ; Article 91 (Failed to obey a lawful order) ; Article 107 (False official statements) .



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

Applicant’s Issues

 1. Deep regret of mistake.
2. Post-service conduct .

Decision

 Date: 20 0 9 0205            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PHYSICAL CONDITION NOT A DISABILITY .
Discussion

 Issue 1: ( ) . 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 four retention warning s and one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA ) 20030623-20030623 (15 days); Article 91 (Failed to obey a lawful order - to check out with the HQBN Officer of the Day prior to going on annual leave); Article 107 (False official statements) , 2 specifications. These are considered serious violations 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.

Whenever a Marine's performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause. When the command suspects a physical condition interferes with the Marine's performance of duty, the Marine should be referred to the appropriate medical authority. If examination by a medical officer confirms the Marine is suffering from a physical condition , apparently beyond the individual's control , and indicates that the condition is not a disability, the command may initiate separation proceedings per paragraph 6303 or 6304 of the Marine Corps Separation and Retirement Manual, MCO P1900.16F . The Sports Medicine Specialists from the Naval Hospital evaluated the Applicant for 6 months for Myofacial Pain Syndrome and Lower Back Pain. The Applicant was recommended to be administrative ly s eparate d for the convenience of the government and i t was determined the Marine had a medical condition, not a disability.

The Applicant has requested an upgrade to “Honorable” in his discharge characterization but provided no additional documentation or evidence on his behalf other than a letter in which he states he deeply regrets his mistake, had good service prior to his mistake and loves and respects the Marine Corps. For the edification of the Applicant, 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. 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. While the Board can understand the Applicant’s regret and love for the Marine Corps, these are not sufficient reasons to warrant an upgrade. The Board determined the Applicant’s NJP was sufficient misconduct to warrant the awarded “General (Under Honorable Conditions)” discharge and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides a discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of educational pursuits; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks,

credit card companies, or other financial institutions; documentation of a drug-free lifestyle; and character witness statements. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post- service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.
The Applicant submitted a statement with his DD-293 a pplication claiming after his discharge he became helpful to his community and has been employ ed. The Applicant’s efforts need to be more encompassing and should be completely documented. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade. The NDRB determined an upgrade founded upon the Applicant’s post-service conduct would be inappropriate.
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, 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, 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, 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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