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USMC | DRB | 2010_Marine | MD1000232
Original file (MD1000232.rtf) Auto-classification: Denied

ex-, USMCR
Current Discharge and Applicant’s Request
Application Received: 20091027
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)       20070427 - 20070529     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070530     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070815      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 04 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 16 D a y ( s )
 Education Level:        AFQT: 49
MOS: 8011
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling :

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 change to characterization of service from U ncharacterized to Honorable in order to receive increased Department of Veterans Affairs (VA) benefits and VA educational benefits.

2.       Decisional issues: The applicant did not state any issues for consideration by the NDRB .

Decision


 Date : 20 10 1220            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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

The Applicant’s record of service includes no 6105 retention-counseling warning and no nonjudicial or judicial punishments for violations of the Uniform Code of Military Justice (UCMJ). The Applicant entered active duty military service with a Commanding General, Marine Corps Recruiting Command waiver for disqualifying medical conditions resultant from a pre-service accident with surgical repair. The medical conditions were evaluated by the Chief, U.S. Navy Bureau of Medicine and Surgery who recommended waiver of disqualifying conditions for enlistment in the Marine Corps Reserve. While in recruit training, the Applicant suffered recurrent hip pain and eventually was transferred to the Medical Rehabilitation Platoon for continued evaluation and further treatment. The Applicant was assigned to a physical therapy regiment and received a magnetic resonance imaging (MRI) bone scan of the femoral head to rule out a femoral neck stress fracture.

On 26 July 200 7 , the Applicant was advised that h is physical condition – severe left hip degenerative joint disease and avascular necrosis, which existed prior to entry into military service – was not considered a physical disability but was prohibitive to completion of initial entry-level training . T he appropriately credentialed medical health care provider treating the Applicant r ecommended administrative separation from the service in accordance with paragraph 6203.2 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) - Convenience of the Government, Condition not a Physical Disability . The Applicant was formally advised of h is condition and re mained on duty for rehabilitation and physical therapy treatment until the entry-level separation action was completed on 15 August 2007 .

The Applicant provided h is U.S. Department of Veterans Affairs claim for service - connected compensation results (with enclosures) for the NDRB’s consideration in regards to h is i ssue. The Applicant should be aware that completion of these items alone does not guarantee an upgrade from an unfavorable discharge. The NDRB reviews each discharge, on a case-by-case basis, to determine if the post-service documentation affects the reason for discharge or the characterization of service upon discharge.

 : (Nondecisional). The Applicant seeks a change in characterization of service at discharge to Honorable , vice U ncharacterized, as currently reflected on is Form DD-214 in order to receive VA educational benefits . The Applicant provided a VA rating decision regarding the Applicant’s claim for disability. The VA determined that the Applicant had a diagnosis of aseptic necrosis of the femoral head with degenerative joint disease of the left hip and a po s terior c r uciate ligament strain, left kne e. The VA further determined that th ese condition s existed prior to entry into active military service but were further aggravated by military service . As such, the VA granted an evaluation of 10 percent disability.



Decisions reached by the VA to determine if former service members rate certain VA benefits do not a ffect previous discharge decisions made by the Naval Service. The criteria used by the VA in determining whether a former service member is eligible for benefits is different than that used by the Navy when determining a member’s reason for discharge. The NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical - related reason.

In accordance with the MARCORSEPMAN, s eparation initiated while a member is within the first 180 days of continuous active duty will be described as an entry-level separation and the characterization of service at discharge will be Uncharacterized except when the characterization of service as Under Other Than Honorable (OTH) is authorized or Honorable is clearly warranted. The Applicant had no misconduct that would rate an OTH discharge, and there w as no evidence of unusual circumstances involving personal conduct and performance that would merit a petition to the Secretary of the Navy for consideration of awarding a n Honorable characterization of service. Since the Applicant served only 7 6 days of continuous active duty service , the NDRB determined that an U ncharacterized discharge was proper and was the most appropriate characterization of service . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action and that the characterization of service upon discharge was both proper and equitable ; as such, the Applicant’s petition for relief is denied .

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, post service VA medical evaluation, and the discharge process, the Board found that the discharge was both 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 his 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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