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USMC | DRB | 2009_Marine | MD0901182

Original file (MD0901182.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090331

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN [CONDITION NOT A DISABILITY]

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20071101 - 20071216     Active:

Period of Service Under Review:
Date of Current Enlistment: 20071217     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080702      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 71
MOS: 0300
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20080505 :      Article 113 (Talking on cell phone while on fire watch)
         Awarded : S usp ended:

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 P1900.16F), 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 .

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

Applicant’s Issues

1. The Applicant seeks to have his RE-code change in order to reenlist.
2. The Applicant claims his discharge was inequitable .

Decision

Date: 20 100114 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

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 nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 113 (Misbehavior of sentinel or lookout: talking on a cell phone while on fire watch) . Based on the Applicant ’s on-going medical issues , the basis of which existed prior to entry (EPTE) and was waivered , command administratively processed for separation . When notified for a dministrative s eparation Processing, the Applicant waived rights to consult with qualified counsel and to submit a written statement for consideration by the separating authority . The a pplicant was not entitled to an a dministrative b oard.

: (Nondecisional) The Applicant seeks to have his RE-code change in order to reenlist. 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.

Issue 2: (Decisional) ( ) . The Applicant contends his discharge was inequitable for many reasons to include: he was discharged involuntarily, he was discharge due to a physical condition that’s not disabling , he was eligible for promotion, and he was eligible for the good conduct medal. First, the fact that the Applicant was discharged involuntarily does not necessarily mean it was due to misconduct. The Government will involuntarily discharge Marines for convenience of the government for a whole host of situations that do n o t include misconduct. F or the Applicant’s edification, the narrative reason, “Condition Not a Disability,” simply means that a service member suffers from a condition, physical or mental, that is not considered a disability that would entitle certain service benefits from the VA. It does not suggest that one is physically disabled or cannot reenlist . In the Applicant’ s case, he was discharged for the same physical condition for which he was granted a medical waiver that enabled him to enlist into the Marine Corps. So, the Marine Corps gave the Applicant a chance with a known conditio n . During his training, t he command suspected this physical condition was interfering with his effective performance of duty. The command referred the Applicant to an appropriate medical authority for further evaluation. In a situation where a n examination by a medical officer confirm s that the Marine is suffering from a physical condition beyond the individual's control and he indicates that th e condition is not a disability, then a discharge i s recommended . The medical officer determined that the Applicant’ s condition (at ypical chest pain non-cardiac in nature ) was so severe that his ability to function effectively in the military environment was significantly impaired . Thus, the Marine Corps deci ded to discharge the Applicant involuntarily . Also , the separation code of JFV1 was correct because it signifies that the Applicant was discharged due to a Condition Not a Disability and he did not have or was not entitled to a medical or administrative board.

Additionally, the Applicant says he was eligible for promotion and a good conduct medal (GCM). Due to the Applicant’s misconduct, he would not have been eligible for promotion until August/September timeframe. As for the GCM, it is awarded after three years of good service, which means no NJP’s or court-martials within that time. If misconduct occurs, the GCM restart date is the date that the misconduct was adjudicated. Due to the Applicant’s NJP in May 2008 , he would not be eligible for a GCM until May 2011 , provided no other misconduct occurred .

Finally , for the edification of the Applicant, w ith respect to non - service related administrative matters ( i.e., Department of Veteran Affairs benef its, civilian employment, etc .) , an uncharacterized separation shall be considered the equivalent of an Honorable or General ( U nder Honorable C onditions) characterization. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization.

The NDRB examined all pertinent information regarding the Applicant’s case. Per the commanding officer’s letter dated 17 June 2008, the Applicant was notified of his rights regarding separation with 5 months/24 days (176 days) of service , although the paperwork associated with the notification was dated 16 June 2008 (183 days ) and initialed / signed by the Applicant on 17 June 2008 (184 days) . In that same letter was an enclosure —the medical officer’s letter dated 12 June 2008 (179 days) —which is presumed to have been his recommendation for discharge . The NDRB carefully accessed the intent and the execution of the command in discharging the Applicant. The NDRB opined that the command ’ s decision to discharge the Applicant was prior to the 180 day cut-off for an unauthorized characterization and verbally told him that he was being separated from the Marine Corps , but that the execution (documentation) of the discharge was 3-4 days after the 180 day mark.

Based on the information above, the NDRB determined that the spirit of intent by the command was met and that the “Uncharacterized” discharge received was in the best interest of the Applicant. From the NDRB’s experience , the Applicant, more than likely, would have been awarded a “General (Under Honora ble Conditions) characterization by his command upon discharge , due to the fact the Applicant was awarded a NJP in his short time in service. Relief denied

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, 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 Additi onal Reviews , Reenlistment/RE-code and Post-Service Conduct .

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 | MD0901182

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