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USMC | DRB | 2010_Marine | MD1000168
Original file (MD1000168.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091020
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:         U.S. Army Reserve (DEP) Unknown - 20010905 ; Entry Level Separation/Uncharacterized
USMCR (DEP)      20011031 - 20020805     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020806     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030224      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 55
MOS: 9971
Proficiency/Conduct M arks (# of occasions): (1) / (1)   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20021205 :       For your physical condition (chronic right foot pain to Sesmoid Fracture at the First Meta t arsal) which in terferes with your duties , s pecifically, the inability to participate in rigorous exercises, conditioning, hikes, and field duty.

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 : Applicant seeks a change in his assigned re-enlistment code (RE-3P) and to have portions of his chronological history of medical care expunged from his service medical record.
Decision

 Date: 20 10 1209            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 did not identify any decisional issues to the Board. However, the Board did complete a thorough review of the circumstances that led to his discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant entered active military service with the Marine Corps on 6 July 2002. His service record reflects that he was discharged from the United States Army Reserve for failure to ship to scheduled Entry Level Training on 5 September 2001; in accordance with Army Regulation 135-178, the discharge characterization of service awarded was Uncharacterized.

The Applicant’s record of service in the Marine Corps reflects neither 6105 retention-warning counseling nor any judicial or non-judicial punishment for violation of Articles of the Uniform Code of Military Justice. The Applicant requested, and was recommended by an appropriately credentialed medical health care provider, to be separated from the Marine Corps by Convenience of the Government due to a physical condition, not a disability [specifically – non-resolving chronic foot pain secondary to a Sesamoid Fracture at the First Metatarsal]. The NDRB reviewed the Applicant ’ s separation package contained in his o fficial military personnel file. W hen notified of a dministrative separation processing using the notification procedure, the Applicant waived his right to consult with a qualified counsel and to submit a written statement to the Separation Authority.

In support of the Applicant’s petition, he provided additional documentation , which included a personal statement to the Board, several personal and professional letters of recommendation, and a psychological assessment from a licensed Clinical Psychologist. The Applicant should be aware that submission of these items alone does not guarantee an upgrade or change in a discharge characterization or narrative reason for separation . E ach discharge is reviewed by the Board , on a case-by-case basis .

: (Nondecisional) . The Applicant seeks the NDRB’s action to change his assigned re-enlistment code at discharge (RE-3P) and to have portions of his chronological history of medical care expunged from his service medical record in order to re-enlist in the U.S. Navy or gain a commission in the U . S . Army.

The Applicant was administratively separated from the Marine Corps by Convenience of the Government due to a physical condition, not a disability . The re-enlistment code assigned at separation was RE-3P ( Failure to meet physical/medical standards ). The NDRB determined that it was appropriate at the time issued . 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. Only the Board for Correction of Naval Records can make changes to reenlistment codes. Additionally, t he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and does not have the authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

The Applicant seeks to remove information from his service medical record that he believes to be inaccurate. The NDRB has no authority to effect changes or corrections to official service records. Requests for this type of action may be addressed to the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 .
Record of Discharge Review: ( ) . The Applicant did not identify any decisional issues regarding the propriety or equity of his discharge to the NDRB . However, the Board complete d a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.

The Applicant requested, and was recommended by an appropriately credentialed medical health care provider, to be separated from the Marine Corps by Convenience of the Government due to a physical condition, not a disability . Based on a review of the Applicant ’ s administrative separation package and supporting documentation, the NDRB determined no impropriety in the Applicant’s discharge and that the n arrative r eason for s eparation was appropriate to this case.

In accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), s eparation of a service member initiated while within the first 180 days of continuous active duty service will be described as an entry - level separation (i.e., Uncharacterized) except when the characterization of service as Under Other Than Honorable Conditions (OTH) is authorized or Honorable is clearly warranted due to meritorious service. The Applicant had no misconduct that would rate an OTH discharge, and there w as no evidence of meritorious service involving personal conduct or performance that would merit an Honorable characterization , which is required to be approved by the Secretary of the Navy. Since the Applicant was notified of the recommendation for separation after serv ing 1 74 days on continuous active duty service , an Uncharacterized discharge is considered the most appropriate characterization of service. The NDRB determined that the discharge was equitable; as such, r elief is not 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 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 Review s 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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