ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090313
Characterization of Service Received:
Narrative Reason for Discharge:  DISABILITY, SEVERANCE PAY
Authority for Discharge:  MARCORSEPMAN 8401 (DISABILITY, SEVERANCE PAY)

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

                             Summary of Service

Prior Service:
Inactive:   USMCR (DEP)      19980312 - 19980318   Active:

Period of Service Under Review:
Date of Enlistment:  19980319     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20020515 Highest Rank:
Length of Service:    Year(s)    Month(s)  27  Day(s)
Education Level:       AFQT:  70
MOS:  0622
Proficiency/Conduct Marks (# of occasions):   /    Fitness Reports:

Awards and Decorations (per DD 214):    Rifle  Pistol    CoC

Periods of UA/CONF:

NJP:
    - 20020221:  Article 107 (False official statement)
      Article 117 (Provoking speeches or gestures)
      Article 128 (Battery)
      Awarded:     Suspended:

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 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.



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

                             Applicant’s Issues

1.  The Applicant did not state any decisional issues.

                                  Decision


Date:  20090917              Location: Washington D.C.
Representation:

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

                                 Discussion


The NDRB, under its responsibility to examine the propriety and equity of
an Applicant’s discharge, is authorized to change the character of service
and the reason for discharge if such change is 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.  The Applicant
did not identify any decisional issues to the Board.  However, the Board
did complete a thorough review of the circumstances which led to his
discharge and the discharge process to ensure his discharge met the
pertinent standards of equity and propriety.  The Applicant’s record of
service reflects one Non-judicial Punishment (NJP) for violations of the
Uniform Code of Military Justice (UCMJ): Article 107 (False official
statement), Article 117 (Provoking speech or gestures), and Article 128
(Battery).  His command administratively processed him for involuntary
separation due to a physical disability (injured shoulder).  He was awarded
separations pay.

:  (Decisional) () .  The Applicant is asking that his characterization of
service be upgraded from GENERAL UNDER HONORABLE CONDITIONS to HONORABLE.
The Applicant did not identify any issues to the Board.  However, the Board
did complete a thorough review of the circumstances which led to his
discharge and the discharge process to ensure his discharge met the
pertinent standards of equity and propriety.  The Applicant served 4 years
and 1 month of his initial 5 year contract.  The Applicant does not provide
a statement or any other evidence to justify his request for an upgrade.
On page 4, Item 8, in the instructions for completion of DD Form 293, the
Applicant is notified to submit evidence "which substantiate or relate
directly to your issues in Item 6." (Issues: Why an upgrade or change is
requested and justification for the request).  Additionally, upon receipt
of the Applicant's DD Form 293, the NDRB mails an acceptance letter that
includes the Information Concerning Review Procedures, which discusses the
submission of additional documents in paragraph 3, Submission of Evidence,
and in the last section on page 4, Information Pertaining to a Review Based
Upon Post-Service Conduct.  However, even if the Applicant could have
produced additional evidence to support a review based on his post-service
conduct, the Applicant must have a full understanding that post-service
conduct alone does not guarantee an upgrade.

When the service of a member of the Naval Service has been honest and
faithful, it is appropriate to characterize that service as honorable.
GENERAL UNDER HONORABLE CONDITIONS discharge is warranted when significant
negative aspects of a member’s conduct or performance of duty outweigh the
positive aspects of the member’s military record.  Although the Applicant
was granted a discharge due to physical disability, his service record
reflects he was awarded NJP for violations of UCMJ Articles 107, 117 and
128.  Violation of Article 107 alone is punishable by a dishonorable
discharge and up to 5 years of imprisonment if adjudicated by Courts-
Martial.  The Applicant’s conduct, which forms the primary basis for
determining the character of service, reflects the Applicant’s willful
failure to meet the requirements of conduct expected of all Marines,
especially one of his grade and length of service and falls far short of
what is required for an upgrade in the characterization of service.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, discharge process
and evidence submitted by the Applicant, the Board found   Therefore, the
awarded characterization of service shall remain, General Under Honorable
Conditions, and the narrative reason for separation shall remain
Disability, Severance Pay.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from May 15,200, his date of discharge.  The
Applicant is directed to the Addendum, specifically the paragraphs titled
Additional Reviews, Automatic Upgrades, and Post-Service Conduct.


                  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 NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’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 NDRB 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 NDRB 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