Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901783

Original file (MD0901783.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090609

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20080110 - 20080113     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080114     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080318      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 57
MOS: 8000
Proficiency/Conduct M arks (# of occasions): N/A / N/A    Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of UA / CONF :

NJP: SCM: SPCM: CC:

Retention Warning Counseling : 1
- 20080312 :       For not being recommended for reenlistment and for assignment of reenlistment code of RE-3F by reason of Defective Enlistment – FRAUDULENT Enlistment for Other ASTHMA-EPTE.

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. 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 .

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

Applicant’s Issues

1 .       E mployment opportunities.
2. Wants to reenlist in to the Marine Corps .
3. First time ever officially diagnosed with asthma while in the Marine Corps.
4. Narrative reason was suppose d to be “Convenience of the Government.”
5 .       P ost-service conduct.

Decision

Date : 20 10 0415          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 reflects no misconduct that resulted in nonjudicial punishment (NJP) or court-martial. The Applicant failed his i nitial strength test (IST) twice , 18 Jan uary 20 08 and 1 February 20 08, and on 7 March 20 08 , was diagnosed with asthma and recommended for separation. Based on the Applicant’s diagnosis of asthma and failure to disclose his history of asthma -related symptoms prior to entry into the Marine Corps , command administratively processed for separation. When notified of administrative separation processing, the Applicant waived rights to consult with a qualified counsel and su bmit a written statement.

: (Nondecisional) The Applicant is requesting an upgrade in order to be a police officer and reenlist into the Marine Corps. 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. Refer to the Addendum paragraph, Employment/Educational Opportunities, for more information.

Issues 3-4 : (Decisional) ( ) . The Applicant contends he was first officially diagnosed with asthma was while in the Marine Corps . However, in his application to the NDRB, t he Applicant provided documentation of a pulmonary function report testing dated 28 May 09 in which he checks YES to the question do you have as thma. The report indicates the Applicant has had asthma for over 15 years. In addition, during a evaluation by military medical staff , the Applicant verified during his entry level separation ( ELS ) counseling that he had a history of asthma related symptoms such as wheezing , shortness of breath, and had used his mother’s inhaler. However, he did not admit to having these conditions during his in-processing at the military entrance processing station (MEPS) on his Form 2808 or during the motivational run (MOT) at the Depot. The Applicant claims he was told during his separation counseling that his n arrative reason for separation would be “Convenience of the Government . Review of t he Applicant’s discharge paperwork shows he was administratively separated for defective enlistment and induction by reason of fraudulent entry into the Marine Corps, not for convenience of the government. The Applicant signed an administrative remarks page on 12 March 2008, that he was counseled and understood he was not recommended for reenlistment, and would be assigned an RE code of RE-3F by reason of defective enlistment – fraudulent enlistment for other asthma-EPTE (existed prior to enlistment). Based on the evidence of record, the NDRB determined the narrative reason for separation was appropriate.

Issue 5 : (Decisional) ( ) . The Applicant contends he has been working since his discharge and his post-service conduct warrants consideration. An Uncharacterized discharge does not imply any misconduct, nor does it have negative implications. The Applicant should be aware that, with respect to non-service related administrative matters, i.e., the Department of Veterans Affairs ( VA ) benefits, educational pursuits, and espe cially civilian employment, an U ncharacterized separation is c onsidered the equivalent of an H onorable or General (U nder Honorable C onditions) discharge. While the NDRB applauds the Applicant’s post-service conduct, such conduct has no relevancy in this case. No change is warranted.

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 the discharge was proper and equitable at the time of disc harge. 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 .

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 Disable d American 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 their 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 | MD0901783

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