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USMC | DRB | 2009_Marine | MD0900730
Original file (MD0900730.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090209
Characterization of Service Received:
Narrative Reason for Discharge: ERRONEOUS ENLISTMENT
Authority for Discharge: MARCORSEPMAN par 8404.5

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

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       19970723 - 19970826     Active:  

Period of Service Under Review:
 Date of Enlistment: 19970827     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980402      H ighest Rank:
Length of Service : Y ea r (s) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 55
MOS: 3000
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

NJP: SCM: SPCM: CC: Retention Warning Counseling:

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 P1900.16E), effective 18 August 1995 until 31 August 2001, 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 .



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

Applicant’s Issues

 1. Erroneous Narrative Reason of Separation .

Decision

 Date: 20 0 9 0423          Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
Discussion

 : ( ) . The Applicant contends her Narrative Reason for Separation is an improper characterization based on the fact the Marine Corps knew , and gave her a waiver prior to enlistment, for the very reason she was being discharged : Thus, there was nothing erroneous about her enlistment. 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. In December 1992, the Applicant enlisted into the Marine Corps, but was discharge in June 1993 due to a p hysical disability (dislocated knee) as determined by a Physical Evaluation Board (PEB) ; the disability exist ed prior to her entry into the service. The Applicant received an “ Uncharacterized ” discharge, due to her enlistment being less than six months as a result of h er medical condition. It appears the Applicant rehabilitated her knee, and was cleared by a civilian Orthopedic Doctor in December 1996. The Applicant then attempted to reenlist back into the Marine Corps in the summer of 1997. She was re-evaluated and the Chief of the Bureau of Medicine and Surgery reported the Applicant “ d oes not meet established physical standards due to a history of Entry Level Separation for recurrent dislocation of right knee – cleared by orthopedics ” . They stated that a waiver of the physical standards is recommended, which the Marine Corps approved. The Applicant then reenlisted into the Marine Corps, with a waiver, in August 1997. After months of training , a medical condition again manifested itself in her right knee. After further evaluation, it was determined the Applicant has a physical condition that was not a disability and it was very unlikely the condition w ould have improve d while in the military. The Applicant was discharged in April of 1998 with an “ Honorable ” discharge and a Narrative Reason for Separation being “ Erroneous Enlistment. ” The NDRB determined the Narrative Reason was incorrect and should have been “Condition Not a Disability , ” based on the fact the Marine Corps knew of the existing condition and granted the Applicant a service waiver to enlist. The Separation Code of “JFV1 ” , reflect ed on the DD-214 , also identifies a “Condition Not a Disability.” By a vote of 5-0, the Board determined that the Narrative Reason for Separation should be changed to “ SECRETARIAL AUTHORITY ” .

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, 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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