Search Decisions

Decision Text

USMC | DRB | 2010_Marine | MD1002043
Original file (MD1002043.rtf) Auto-classification: Denied

SANDERS, Davis L., XXX-XX-4010, ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100810
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)       20020926 - 20030817     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030818     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060714      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 49
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (Iraq) (2) (Iraq)

Periods of UA / CONF :

NJP:

- 20050718 :      Article (Derelict in the performance of his duties in that he willfully failed to remain alert, as it was his duty to do so , Al Qaim , Iraq, 0036 on 20050712 )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040607 :       For failure to obey an order or regulation (Art 92), consuming alcohol under the legal drinking age of 21.

- 20060515 :       For Patellofemoral dysfunction .

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 :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant seeks a discharge upgrade to obt ain veteran education benefits.
2.       Applicant contends that he was told he could upgrade his discharge to Honorable six months after separation.

Decision

Date: 20 1 1 1205            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. T he Board did complete 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 counseling warnings for a violation of the Uniform Code of Military Justice ( UCMJ ) Article 92 underage drinking (7 Jun 2004) and patellofemoral dysfunction (15 May 2006). The record also reflected nonjudicial punishment (NJP) for o f the UCMJ: Article 92 ( Failure to obey an order or regulation, dereliction in the performance of his duties in that he willfully failed to remain alert as it was his duty to do so, 0036 on 12 Jul 2005, Al Qaim, Iraq ) . The record also revealed that the Applicant was initially evaluated and began a long period of treatment for patellofemoral sy n drome (PFS). After months of treatment, therapy, and limited duty status , the Applicant’s knee pain and mobility did not improve. He received two final medical evaluations (16 May and 22 May 2006) , which resulted in the Battalion Medical Officer stating “ that treatment via physical therapy and sports medicine has had no appreciable effect. All medical resources have been exhausted with current standard of care for PFS. The Applicant’s current condition precludes him from performing the physical requirements of a Marine. He has reached the maximum of medical improvement and it is unlikely he will return to full duty . ” The Medical Officer recommended administrative separation of the Applicant due to the continuing problems manifested by the Applicant’s PFS . In the n o n - medical a ssessment memorandum , the Applicant’s Commanding Officer stated the Applicant “demonstrates no desire to remain in the Marine Corps. SNM lacks motivation to improve his condition by not completing his prescribed stretches and exercises. This demonstrates a lack of sincerity in his desire to improve his physical condition. SNM has not been subjected to any strenuous physical activity since the unit’s return from Iraq in Sept (2005), but states that his condition has worsened. SNM participates in nonphysical duties such as road guard. SNM feels that the Marine Corps owes him for his current status that he has been wronged by not receiving adequate care while on limited duty. ” Based on the Applicant’s long-standing, unresolved knee pain , the medical officer’s recommendation for separation, and the Applicant’s desire to be released from service, the Applicant’s Commanding Officer processed him for administrative separation. When notified of a dministrative separation processing using the procedure on 22 May 2006 , the Applicant waived rights to consult with a qualified counsel and submit a written statement . On 14 Jul 2006, the A pplicant was separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Condition , Not a Disability. Per the Marine Corps Separation and Retirement Manual, a Marine may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Based on the 6105 retention counseling warning for violation of UCMJ Article 92 and the NJP for violation of UCMJ Article 92 , the command had the justification to award the Applicant a General (Under Honorable Conditions) discharge.
: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.



Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that he was told he could upgrade his discharge to Honorable six months after separation. 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 N aval S ervice. The NDRB does not automatically upgrade discharges at six months or at any time after a service member’s discharge. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation 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 for additional information.

Pertinent Regulation/Law

 A . Paragraph 6203.3 CONVENIENCE OF THE GOVERNMENT, 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 .


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

Similar Decisions

  • USMC | DRB | 2010_Marine | MD1000105

    Original file (MD1000105.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. The NDRB reviewed the...

  • USMC | DRB | 2014_Marine | MD1401023

    Original file (MD1401023.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.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. ...

  • USMC | DRB | 2006_Marine | MD0600604

    Original file (MD0600604.rtf) Auto-classification: Denied

    Period of Limited Duty: 8 months. Follow up: as needed.Final Disposition: PT is found FFD w/the following limitations – partial PT only, no running – no forced marches. Bilateral knee joint pain in the patellofemoral region, worse while walking, while running, while jumping, started gradually, occurs at rest, worse on rising from a seated position, knee joint stiffness, and a grating sensation I the knee but no knee joint swelling, able to straighten the knee, and the knee did not suddenly...

  • USMC | DRB | 2015_Marine | MD1500320

    Original file (MD1500320.rtf) Auto-classification: Denied

    Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE. ” 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. There is no requirement or law that grants recharacterization solely...

  • USMC | DRB | 2015_Marine | MD1500827

    Original file (MD1500827.rtf) Auto-classification: 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . ” 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...

  • USMC | DRB | 2007_Marine | MD0700146

    Original file (MD0700146.rtf) Auto-classification: Denied

    The Board found that Discussion Issue(s) 1: The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Regulations limit the Board’s...

  • USMC | DRB | 2010_Marine | MD1000079

    Original file (MD1000079.rtf) Auto-classification: Denied

    Per the recommendation of the Mental Health department, SNM should not deploy at this time. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical 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...

  • NAVY | DRB | 2011_Navy | ND1101724

    Original file (ND1101724.rtf) Auto-classification: Denied

    After review of all the available evidence, to include documentation submitted on behalf of the Applicant, the Board found that the Applicant was responsible for his actions and that PTSD and TBI did not mitigate the misconduct for which he was separated.Accordingly, the NDRB determined the Applicant’sdischarge was proper and equitable per the applicable orders and directives in effect at the time of his separation, and this issue did not provide a basis for which relief could be granted,...

  • USMC | DRB | 2012_Marine | MD1201634

    Original file (MD1201634.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...

  • USMC | DRB | 2015_Marine | MD1401486

    Original file (MD1401486.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.