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USMC | DRB | 2010_Marine | MD1000170
Original file (MD1000170.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:         USMCR (DEP)       20010802 - 20011211     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011212     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021023      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 56
MOS: 9900
Proficiency/Conduct M arks (# of occasions): None         Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20011220 :       For not showing the ability to successfully complete recruit training, failure to meet the required physical standards.

- 20020107 :       For not showing the ability to successfully complete recruit training, failure to meet the required physical standards, not putting forth reasonable effort at all times in recruit training , and not adapting to the Marine Corp s way of life, shown a failure to retain classroom instruction/knowledge, apathetic attitude toward training, lack of maturity by your actions, lack of self discipline, inability to follow instructions/orders, disrespectful and belligerent attitude.

- 200 2 0110 :       For not showing the ability to successfully complete recruit training, failure to meet the required physical standards, not adapting to the Marine Corp s way of life, inability to drill, lack of maturity by your actions, inability to follow instructions/orders, disrespectful and belligerent attitude.

- 20020228 :       For not showing the ability to successfully complete recruit training, inability to follow instruction/orders.

- 20020304 :       For not showing the ability to successfully complete recruit training, inability to follow instruction/orders.

- 20020 415 :       For not showing the ability to successfully complete recruit training, not adapting to the Marine Corps way of life .

- 20020730 :       For not showing the ability to successfully complete recruit training, failure to meet the required physical standards.

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. Paragraph 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

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 .       Decisional issues : (Propriety/Equity) The Applicant contends that her discharged was inequitable due to her suffering from a physical injury that limited her ability to pass the physical requirements required to become a Marine.

Decision

Date: 20 10 1209            Location: Washington D.C .         R epresentation : Dept of Veterans Affairs

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 a 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 identified one decisional issue to the NDRB . Additionally, the Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant entered military service with three waivers to enlist: (1) illegal use of drugs, marijuana; (2) adjudicated law violations, minor non-traffic; and (3) adjudicated law violations, minor traffic violations. The Applicant’s record of service included seven paragraph 6105 retention- counseling warnings while undergoing recruit training . She had no disciplinary issues that resulted in judicial or non-judicial proceedings.

 The NDRB reviewed the Applicant’s administrative separation package. W hen notified of a dministrative separation processing using the procedure, the Applicant acknowledged receipt of notification th at she was being recommended for separation from the Marine Corps pursuant to paragraph 6206 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) due to unsatisfactory performance – specifically: multiple failures of the Marine Corps physical fitness test and rifle marksmanship. The Applicant further acknowledged that she was being recommended for separation with a General (Under Honorable C onditions) characterization of service and that this characterization of service was the least favorable that she could receive . When notified of separation, the Applicant elected to waive her right to consult with qualified counsel and did not choose to include a rebuttal statement to the Separation Authority.

The Applicant provide d additional documentation for consideration by the NDRB that included a personal statement to the board and a copy of her Department of Veterans Affairs (VA) disability rating determination (10% - limited flexion of the thigh) . The NDRB is not bound by d ecisions reached by the VA in d etermin ing if former service members rate certain VA benefits , and the VA’s determination action do es not affect previous discharge decisions. The criteria used by the VA in determining whether a former service member is eligible for benefits is different than that used by the Department of the Navy when determining a member’s characterization of service at discharge . The Applicant should be aware that submission of these items alone does not guarantee an upgrade from an unfavorable discharge , as each discharge is reviewed by the Board , on a case-by-case basis , in consideration of the unique factors of each discharge action.

: (Decisional) ( ) . The Applicant contends that her discharge was inequitable due to her suffering from a physical injury that limited her ability to pass the physical requirements required to become a Marine. The Applicant was discharged from the U.S. Marine Corps pursuant to paragraph 6206 of the MARCORSEPMAN , specifically, Unsatisfac tory Performance. The specific basis for this separation was the Applicant ’ s failure to pass the physical fitness standards established for female Marines and her failure to qualify with the Marine Corps service rifle . In accordance with paragraph 6206 of the MARCORSEPMAN, u nsatisfactory performance is characterized by:

(a) Performance of assigned tasks and duties in a manner that does not contribute to unit readiness and/or mission accomplishment as documented in the service record ; or ,
(b) f ailure to maintain required proficiency in grade, as demonstrated by below average proficiency/conduct numerical marks or adverse fitness report markings or comments accumulated in the Enlisted Performance Evaluation System.
(c) Additionally, t his reason for separation shall not be used for separation of a member in an entry - level status.

The Applicant was on active duty in excess of 180 days, and therefore , was no longer in an entry-level status. She was counseled regarding her performance of duties and those counselings were documented, in detail, in her recruit information and training record. Furthermore, due to the Applicant exceeding the entry-level status of 180 days, she was counseled in accordance with paragraph 6105 of the MARCORSEPMAN , specifically warning her that failure to take corrective action regarding her noted deficiencies may result in disciplinary action and/ o r processing for administrative separation. The A pplicant ’s training record document ed that she was afforded multiple opportunities in training, medical rehabilitation, and physical conditioning in order to complete the minimum acceptable t raining requirements; the Applicant failed to do so. Her failure to perform her assigned tasks and duties to an acceptable level of accomplishment coupled with her failure to maintain required proficiency as demonstrated by her evaluations meet the standards required of paragraph 6206 of the MARCORSEPMAN; accordingly, the NDRB determined that the narrative reason for separation was proper as issued .

When the service of a Marine has been honest and faithful, it is appropriate to characterize that service as H onorable. A G eneral discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweighs the positive aspects of the member’s military record. The Applicant’s service was marred by 7 retention warnings for her unsatisfactory performance of duties while undergoing recruit training, including repeated passing, then failing , of physical fitness standards coupled with six repeated failures to qualify with the Marine Corps service rifle. The Applicant’s performance of duties , which forms a b asis for determining the character of h er service, reflect h er failure to meet the requirements of h er contract with the U.S. Marine Corps and f ell short of that required for an upgrade of h er characterization of service. Accordingly, the NDRB determined that the characterization of service was appropriate as issued ; 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 determined that the discharge was proper and equitable as issued. 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 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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