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USMC | DRB | 2009_Marine | MD0901156

Original file (MD0901156.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090326
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 19970411     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020415      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 04 D a y ( s )
         Active: Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 35
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP: SCM: SPCM: CC:

Retention Warning Counseling :

- UNDATED :        For my unauthorized absence. [SNM not available for signature]

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:

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

Applicant’s Issues

1.       Unsatisfactory participation was due to injury .
2.       Applicant complied with requirement to provide medical documentation of his inability to participate in drills.
3. Applicant was told by command he would receive an h onorable discharge due to medical reasons .

Decision

Date: 20 0 9 1029          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FAILURE TO PARTICIPATE .

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warning for excessive unauthorized absences from scheduled drills. Based on the offenses committed by the Applicant, command administratively processed for separation. The Applicant was notified of administrative separation p rocessing via certified mail , which was received and signed for on 5 March 2001. T he Applicant failed to return the notification of d ischarge and a cknowledgment of r espondent’s r ights worksheet and consequently waived rights to consult with qualified counsel, submit a wri tten statement, and request an administrative b oard .

: (Decisional) ( ) . The Applicant contends his unsatisfactory participation was due to an injury he received in June of 1999 and that he provided all required medical documentation to his command . The Applicant’s service record and additional records submitted b y the Applicant clearly es tablish that he received an off- duty injury in June 1999 that prevented him from participating in drill s . His command recognized this injury and placed the Applicant in a Temporary Not Physically Qualified (TNPQ) status. The Applicant signed a letter acknowledging his responsibilities concerning placement on T N PQ status including the requirement to provide monthly updates of his physical condition from his attending physician on 5 June 2000. The Applicant signed a n additional letter acknowledging this requirement to provide medical documentation on 21 Sept 2000. The record reflects that the Applicant did not provide medical documentation as required and became noncompliant on 1 Oct 2000 . Further, the command made every reasonable attempt to persuade the Applicant to provide required medical documentat ion so that he could be carried in a T N PQ status. These effort s included phone calls on 8 Dec 2000 and 4 Feb 2001 . Additionally, several letters were sent by the command advising the Appl i cant that he was in a noncompliant status for not fulfilling his medical requirements , in an unsatisfactory drill status and being reduced in rank due to unsatisfactory performance of reserve training .

: (Decisional) ( ) The Applicant contends that he was told by his co mmand that he would receive an h onorable discharge due to his medical status. This is not supported by the evidence in the Applicant’s service record nor does the Applicant provide any information to substantiate this claim. The record clearly reflects that every reasonable attempt was made by the command to advise the Applicant of his unsatisfactory status and potential consequences of his continued failure to comply with requirements. These efforts included two notices of intent for administrative reduction and two notices of administrative reduction in rank on 22 Jan and 6 March 2001 . Additionally, a letter from the co mpany First Sergeant was received , v ia certified mail on 1 Feb 2001, advising the Applicant of his unsatisfactory participation , asking him to correct the situation and advising the Applicant that he could receive an Under Other Than Ho norable Conditions discharge. Further , the commanding officer sent a letter to the Applicant’s father , dated 8 March 2001, in an attempt to have the Applicant contact the unit and to advise the Applicant of his unsatisfactory drilling status and potential administrative separation with an Under Other Than Honorable Conditions characterization of discharge.

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

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

Pertinent Regulation/Law

A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
1 September 2001 until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

D . 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 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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

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USMC | DRB | 2009_Marine | MD0901156

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