Upgrade.Vet

USMC | DRB | 2009_Marine | MD0902482

Original file (MD0902482.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090909

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)       20061002 - 20061025     Active:

Period of Service Under Review:
Date of Current Enlistment: 20061026     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070921      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 53
MOS: 9971
Proficiency/Conduct M arks (# of occasions): 3.7 (#of Occasions NFIR) / 3.7 (#of Occasions NFIR)
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :                 NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070322 :       For A rticle 92 , w hile at formal MOS school, failure to obey order or regulation - caught using chewing tobacco in the squad - bay by the D uty NCO.

- 20070816 :       For diagnosed medical condition (Major Depression, Single Episode, Recurrent Moderate) which interferes with your duties.

- 20070914 :       For A rticle 86, unauthorized absence , from 20070226 – 20070310 ( 13 days ) .

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.       Nondecisional issues: None
2.       Decisional issue : ( Equity ) Applicant contends that he was separated for medical reasons with no disciplinary problems hence his characterization of service should be Honorable, not General ( Under Honorable Conditions ) ; as such, applicant requests the NDRB consider his record of service and upgrade his characterization of service to Honorable.

Decision

Date: 20 10 0902          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 requested the B oard consider the equitab i lity of his discharge characterization of service. Therefore, the Board complete d a thorough review of the circumstances that led to discharge , and the discharge process , to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 retention counseling warnings for two separate violation s of the Uniform Code of Military Justice : Article 92 – failure to obey a lawful order or regulation and Article 86 - Unauthorized Absence for a period of 13 days.

The Applicant was delayed in his initial military occupational specialty (MOS) training due to a resolving stress fracture to his right tibia and chronic knee pain. As recommend by his Credentialed Medical Health Care Provider, the Applicant was afforded the opportunity to change his MOS - to one less physically demanding - in order to continue to progress in training with a decreased risk of re-injury . The Applicant accepted and was authorized a change from his contractual Infantry MOS to a Communications MOS. While undergoing treatment and rehabilitation for his injuries, the A pplicant became depressed and despondent over his progress . A Credentialed Me ntal Health Care provider evaluated the Applicant and recommended the service discharge him pursuant to paragraph 6203.2 of the Marine Corps Separation and Retirement Manual for a condition not a disability - Major Depression, Single Episode, Recurrent Moderate Axis I diagnosis. This administrative discharge warrants a General ( Under Honorable Conditions ) or Honorable characterization of service based on the demonstrated conduct of the Applicant during th e period of enlistment.

: (Nondecisional) None .

: (Decisional) ( ) . T he Applicant contends that he was separated for medical reasons with no disciplinary problems ; as such, h e warrants an Honorable characterization of service, not a General ( Under Honorable Conditions ) characterization. The A pplicant request ed that the NDRB consider his service record and , under equity, upgrade his characterization of service to Honorable.

When a Marine’s ser vice has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Furthermore, a General discharge is warranted when a Marine commits act s that constitute a significant departure from the conduct expected of a member of the naval service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant ’s failure to meet the basic requirements of conduct expected of all Marine s, regardless of grade and length of service , and falls far short of what is required for an upgrade to H onorable. The Applicant’s brief service record was marred by retention warning s for failure to obey rules and regulations (Article 92, UCMJ) and for a 10-day period of Unauthorized Absence (Article 86, UCMJ); each would normally have warranted a n Article 15 Nonjudicial Punishment - at a minimum. Furthermore, violation of Article 92 is considered a serious offense, punishable by punitive discharge or confinement if adjudicated by a special or general court-martial.

The command did not pursue a punitive discharge or an administrative discharge with an Under Other Than Honorable Conditions characterization , t hough the record of evidence warrant s either . Instead, t he C ommand accept ed the Mental He althcare Provider ’s findings and processed the Applicant for separation from service with a narrative reason for discharge of “Convenience of the Government - N ot a D isability” and a General, Under Honorable Conditions characterization of service .

The Applicant clearly did not meet th e high standard for an Honorable characterization of service . The Applicant provided no documentation , beyond that which was in his medial record , to refute or challenge any diagnosis or documented misconduct during his enlistment . The only mitigat ing factors the Applicant provided were his youth and immaturity , coupled with missing his new wife and newborn child. The NDRB determined that the Applicant's youth or age was not a mitigating factor in the misconduct , which contributed to his final characterization of service upon discharge .

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. 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 | MD0902482

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