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USMC | DRB | 2010_Marine | MD1000242
Original file (MD1000242.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091022
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)       20020123 - 20 020212     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020213     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030109      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 90
MOS: 9900
Proficiency/Conduct M arks (# of occasions): /                   Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20021219 :       For having been diagnosed with a biomechanical problem, which has been determined by a medical officer to be a physical condition that is not a disability. Because of your condition you have not been un able to complete the semi-annual PFT requirement or annual rifle qualification.

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: The Applicant seeks a change in narrative reason for discharge to a Disability finding , vice convenience of the government, condition not a disability , as currently reflected on her DD Form 214.

2.       Decisional issues : The Applicant did not state any issues.

Decision

 Date : 20 10 12 20            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 includes one 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 no waivers for any pre-service drug use or police involvement. While in recruit training, the Applicant suffered both pelvic and femoral stress fractures, resulting in her being delayed in training to recover and rehabilitate in the medical rehabilitation platoon. The Applicant was eventually medically cleared to return to training and graduated from recruit training on 21 June 2002 . Upon graduation, the Applicant remained at the Marine Corps Recruit Depot to fully rehabi litate her injuries , prior to being ordered to her next duty station. While undertaking rehabilitative therapy, the Applicant was advised that her left femur stress fracture and right pelvic stress fractures were conditions that did not exist prior to entry into military service but result ed from her biomechanical problem , which were causing her pain during running and further preventing her from completing required physical training standards.

On 30 October 2002, the Applicant was advised that her physical condition – a biomechanical problem – was not considered a physical disability, and that the appropriately credentialed medical health care provider treating her had recommended her administrative separation from the service by reason of Convenience of the Government, Condition not a Physical Disability. The Applicant was advised of her condition but retained on duty for further rehabilitation and physical therapy treatment. On 12 December 2002, the Applicant was again recommended for separation after having maximized the available physical therapy treatment , without progression. On 01 January 2003, t he Applicant was notified of the Command’s intent to administrative ly separate her pursuant to paragraph 6203.2 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , Convenience of the Government, Condition not a Disability. The chain of command positively endorsed the recommendation for separation and concurred with the recommendation that the A pplicant receive an Honorable characterization of service upon her discharge. W hen notified of the recommendation for administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and to submit a written statement to the S eparation A uthority. On 13 January 2003, the Separation Authority approved the recommendation for administrative separation and the Applicant was discharged under Honorable conditions with a re-enlistment code of RE-3P ( Failure to meet physical/medical standards - Recommended by CO for re-enlistment upon removal of disqualifying factor ) .

The Applicant provided her U.S. Department of Veterans Affairs (VA) claim for service - connected compensation results (with enclosures) for the NDRB’s consideration in regards to her issues. 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 narrative reason for discharge to a Disability finding, vice C onvenience of the G overnment, C ondition not a D isability as currently reflected on her DD Form 214 . The Applicant provided a VA rating decision regarding the Applicant’s claim for disability. The VA determined that the Applicant had residuals from a right hip stress fracture. The VA further determined that this condition was service connected. The VA examination revealed the Applicant’s complaint of residual pain, but also determined that the femur was within normal limits and the range of motion examination also revealed flexion, extension, and abduction in all directions were within normal limits . As such, the examiner diagnosed “ residuals of right hip stress fracture ” and assigned an evaluation of 0 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 discharge characterization. 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. However, the Applicant may provide support ing documentation in a petition to the Board for Correction of Naval Records to seek a change in the narrative reason at separation to D isability vice Convenience of the Government, Condition not a Disability .

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 equitable.

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 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 her 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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