Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901321
Original file (MD0901321.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090409
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:         USMCR (DEP)       20060620 - 20060625     Active:  

Period of Service Under Review:
Date of Enlistment: 2006062 6     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061221      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 41
MOS: 9971
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20061212 :       Article 91 ( Insubordinate conduct toward a NCO - Fail to acknowledge and respond )
         Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20060820 :       For physical condition, (ASTHMA) which interferes with duties.
- 20061114 :       For violation Medical Platoon Rules and Regulation for using cell phone during working hours.
- 20061212 :       For insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer by failing to acknowledge or respond to his NCO .

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 :


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

Applicant’s Issues

 1. Reenlistment opportunity .
2. Recruiter told Applicant not to mention his asthma.

Decision

 Date: 20 0 9 0709 Location: Washington D.C . R epresentation : Colorado Department
 of Veteran Affairs
By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FRAUDULENT ENLISTMENT .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , , regarding .

: ( ) . The Applicant contends the recruiter told him not to mention the fact that the Applicant has a sthma if he hadn’t had an episode in five years. 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 three retention warnings and one NJP for violation of the Uniform Code of Military Justice, Article 91 ( Insubordinate conduct toward a NCO ). Documentation from Valley-Wide Health Systems, Inc . states the Applicant was prescribed an albuterol inhaler on 15 February 2001 ; diagnosed with a sthma on 17 June 2002; and received prescription s for an albuterol inhaler twice in 2004 and twice in 2005 (he enlisted in June 2006) . Additionally, the Applicant marked “NO” in b lock 10.d. of the Report of Medical History of 20 June 2006 which reads, “HAVE YOU EVER HAD OR DO YOU HAVE NOW: Asthma or any breathing problems related to exercise, weather, pollen, etc. ” Based on the Applicant’s pre -service history of asthma and his enlistment medial exam, t he NDRB determined the Applicant purposely withheld his medical condition du e to his desire to be a Marine ; which is not uncommon, but nonetheless dishonest . Based on the Applicant’s pre- existing condition, the enlistment would not have occurred if relevant facts had been known by Department of the Navy (DON) or had appropriate directives been followed. The Board determined th e awarded characterization of discharge, Uncharacterized, was warranted and a change in narrative reason would be inappropriate.

For the edification of the Applicant, w ith respect to non - service related administrative matters ( i.e., U.S. Department of Veteran s Affairs ( VA) benef its, civilian employment, etc.) an U ncharacterized separation shall be considered as the equivalent of an Honorable or General (U nder Honorable C onditions) discharge .
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

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 September 2001 until Present,
paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

 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 .

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 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 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 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

Similar Decisions

  • NAVY | DRB | 2009_Navy | ND0900965

    Original file (ND0900965.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Seeking to reenlist and request my reentry code changed.2. The Applicant is seeking an upgrade in the characterization of her service to Honorable and a change in her narrative reason (unspecified) based on the contention that her discharge was incorrect becauseshe does not have asthma. ” Additional Reviews : After a document review has been conducted, former members are...

  • AF | PDBR | CY2014 | PD-2014-01508

    Original file (PD-2014-01508.rtf) Auto-classification: Denied

    Separation Date: 20081230 The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of theVeterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The examiner documented that the CI was actively taking all prescribed medications.

  • USMC | DRB | 2010_Marine | MD1000442

    Original file (MD1000442.rtf) Auto-classification: Denied

    The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety.The Applicant’s record of service included medical history documentation and voluntary statements that clearly substantiate that he did not disclose pertinent information upon his enlistment into the Marine Corps. Relief denied.Summary: After a thorough review of the available evidence, to include the...

  • USMC | DRB | 2013_Marine | MD1300784

    Original file (MD1300784.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, 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. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2006_Navy | ND0601065

    Original file (ND0601065.rtf) Auto-classification: Denied

    Service Record Entries Related to Characterization of Service or Narrative Reason for Separation 20050728: Counseled on BUMED waiver. Elements of Discharge: [INVOLUNTARY] Date Notified:20050804Reason for Discharge DEFECTIVE ENLISTMENT AND INDUCTION – - FRAUDULENT ENLISTMENTLeast Favorable Characterization: Date Applicant Responded to Notification: 20050804Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)GCMCA...

  • AF | PDBR | CY2013 | PD-2013-01354

    Original file (PD-2013-01354.rtf) Auto-classification: Approved

    A review by the US Army Physical Disability Agencyreaffirmed the IPEB’s findings and the CI was medically separated. The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation. RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows ; and, that the discharge with severance pay be recharacterized to reflect permanent...

  • NAVY | DRB | 2009_Navy | ND0901536

    Original file (ND0901536.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Based on a review of the Applicant’s record of service, which included the in-service records provided by the Applicantand her statementcontained in the DD Form 293, the Board determined the following: 1) there is sufficient evidence to support a basis for discharge due to failure to meet physical standards, 2) there was no evidence that the Applicant ‘s medical condition...

  • AF | PDBR | CY2013 | PD-2013-01939

    Original file (PD-2013-01939.rtf) Auto-classification: Denied

    Separation Date: 20050408 BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.In the matter of the asthma condition and IAW VASRD §4.97, the Board unanimously...

  • NAVY | DRB | 2011_Navy | ND1101088

    Original file (ND1101088.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. By a vote of the Narrative...

  • NAVY | DRB | 2009_Navy | ND0902251

    Original file (ND0902251.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20020706 - 20030616Active: Period of Service Under Review: Date of Current Enlistment: 20030617Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20030721Highest Rank/Rate:SNLength of Service: Year(s)Month(s)05 Day(s)Education Level:AFQT: 49EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):NONEPeriods of...