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USMC | DRB | 2010_Marine | MD1001650
Original file (MD1001650.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100622
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)       20050831 - 20060709     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060710     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080307      H ighest Rank:
Length of Service : Y ea r M on ths 27 D a ys
Education Level:        AFQT: 40
MOS: 3500
Proficiency/Conduct M arks (# of occasions): 4.1 ( ) / ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /CONF:      UA 20061210-2007020 8 ( 60 days)            CONF 200 70208- 2 0070211 (4 days)

NJP: 1
- 2007 032 8 :      Article ( Unauthorized absence for 60 days )
         Awarded: RIR (to E-1) FOP RESTR Suspended: FOP [Appealed - denied]

SCM: NONE        SPCM:    CC:

Retention Warning Counseling : 4
- 20070328 :       For NJP for VUCMJ Article 86 (U nau thorized absence from 1200, 20061210 to 2145, 20070212 ).
- 20070402 :       For lack of discipline and judgment by missing scheduled limited duty board proceeding class , 20070329.
- 20070731 :       For your condition not a disability, specifically, Osteochondritis Dissecans.
- 20080128 :       For your condition not a disability, specifically, adjustment disorder with depressed mood .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         In reference to the BCNR review, dated 11 March 2010 , changes made to the Applicant’s DD 214 (via issuance of a DD-215, dated 20100408) are erroneous. After a thorough review of the Applicant’s record of service, the NDRB found the corrections made by the BCNR to be incorrect. Thus, the NDRB is recommending the following corrections below or simply retraction of the DD215 issued to the Applicant . Moreover, t he Applicant enlisted on 10 July 2006, but due to his 64 days of lost time, the calculations for Block 12a and 12c were adjusted to reflect time lost.

         “ 20061210-20070207 (60 days); 20070208-20070211 (4 days) ”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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. Applicant contends his discharge was improper and should have been based on a physical injury.

Decision

Date: 2011 1 104 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 identif ied one decisional issue for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 retention counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 1200 on 10 Dec 2006 to 2145 on 12 Feb 2007 ) . Documents within the records indicate that while the Applicant was being evaluated and/or treated for some type of knee injury during annual leave in early Dec 2006 , h e was granted a leave extension ( 6-9 Dec 2006 ) by his command . On 10 Dec, the Applicant failed to report back from leave and remained in an unauthorized absence (UA) status until his apprehension by civil authorities on 8 Feb 2007. He was returned to his command on or about 11 Feb 2007. On 29 Mar 2007, the record revealed that the Applicant missed a medical appointment for a limited duty board proceeding (the specific medical reason for the limited duty board was NFIR). On 23 Apr 2007, the Applicant received a Page 11 counseling for refusing surgery on or about 16 Apr 2007 at the Camp Lejeune Ear, Nose, and Throat C linic. On 31 Jul 2007, the Applicant received a 6105 retention counseling warning for a condition not a disability, osteochondritis dissecans. T he Applicant provided the Board with a photocopy of a signed First Endorsement to a 12 Oct 2007 Expeditious Administrative Separation of the Applicant due to ICD-9 code 732.7 (Osteochondritis Dissecans). Listed as references in the administrative separation recommendation memo were “ ref (c) Administrative Separation Recommendation dated 22 Jun 2007 ” and “ ref (d) Administrative Separation Recommendation dated 11 Oct 2007. ” However, this documentation or any reference to it could not be located within the Applicant’s official service records. The Applicant did submit a sick call chit (dated 28 Nov 2007), which annotated the Applicant’s left knee pain and placement on light duty until discharge. The records also reflect ed that t he Applicant had received two mental health evaluations (17 Dec 2007 and 17 Jan 2008) after referral for depression symptoms secondary to medical problems he was being seen for at Camp Johnson sick call. On 18 Jan 2008, the Commanding Officer, Naval Hospital Camp Lejeune sent a memo to the Applicant’s Commanding Officer recommending expeditious administrative separation of the Applicant for Condition Not a Disability due to a diagnosis of Adjustment Disorder with Depressed Mood. He stated that the Applicant “has a condition that has rendered him unsuitable for training and school at this time and continues to keep him separated from his family in San Antonio. He has developed depressive symptoms that have worsened over time and have been observed by his Staff Sergeant. Should he remain here much longer, he may develop a full blown Major Depression which would require more significant treatment from this clinic. Presently, he has a medical/mental condition and not a disability warranting a medical board. No psychotherapeutic intervention beyond this recommendation is warranted such that it will change his feelings and mood. He is utterly unmotivated at this point for continued service…This condition is not combat related nor service connected. He is not receptive to therapeutic intervention at this time…This disorder is of such severity that this individual’s ability to function effectively in the military is significantly impaired. Although not acutely suicidal or homicidal, his condition could escalate in severity at which time he may pose such a risk.” On 28 Jan 2008, t he Applicant received an additional 6105 retention warning for condition not a disability, adjustment disorder with depressed mood.





When notified of administrative separation processing using the procedure on 14 Feb 2008 , the Applicant chose to receive copies of the administrative separation documentation, but waived rights to consult with a qualified counsel and to submit a written statement for consideration by the S eparati on A uthority . On 25 Feb 2008, the Commanding Officer, Marine Corps Combat Service Support Schools endorsed the Applicant’s administrative separation package directing he receive a General (Under Honorable Conditions) discharge due to Condition Not a Disability resulting from a diagnosis of Adjustment Disorder with Depressed Mood. The Applicant was discharged on 7 Mar 2008.

: (Decisional) ( ) . The Applicant contends his discharge was improper and should have been based on a physical injury. 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 B oard for Correction of Naval Records can grant this type of narrative reason change. However, the Board conducted a detailed examination and careful review of the Applicant’s records to determine whether his separation met the pertinent standards for propriety and equity.

Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), w henever a Marine ’ s performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause. When the command suspects a physical condition interferes with the Marine ’ s effective performance of duty, the Marine should be referred to the appropriate medical authority. If examination by a medical officer confirms that the Marine is suffering from a physical condition apparently beyond the individual ’ s control and indicates that the condition is not a disability, initiate separation proceedings per paragraph 6303 or 6304 for a ny additional physical condition which interferes with duty, as determined by the commanding officer and medical officer, that is not considered a physical disability.

A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. The Applicant was found guilty at NJP of violating UCMJ Article 86 (Unauthorized absence), which is considered a serious offense (UA greater than 30 days) and is punishable at Special Court-Martial with a reduction in rank, fine, and Bad Conduct Discharge. The Applicant’s command, however, chose the more lenient administrative process and discharged the Applicant with a General (Under Honorable Conditions) characterization of service.

After careful consideration and deliberation on the facts and circumstances surrounding this case, the Board found that the Applicant’s administrative separation was proper and in accordance with the applicable orders and directives in effect at the time of his sepa ration. Relief denied.

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, Reenlistment/RE-code , Employment/Educational Opportunities, Service Benefits 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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