Upgrade.Vet

USMC | DRB | 2010_Marine | MD1002100

Original file (MD1002100.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100824

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: INJURY

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20070718 - 20071104     Active:

Period of Service Under Review:
Date of Current Enlistment: 20071105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080208      H ighest Rank:
Length of Service : Y ea rs M on ths 04 D a ys
Education Level:        AFQT: 72
MOS: 8000
Proficiency/Conduct M arks (# of occasions): NONE / NONE          Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of UA / CONF :

NJP: NONE        SCM: NONE        SPCM: NONE       CC: NONE         Retention Warning Counseling : NONE

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. The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 September 2001 until Present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

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 wants the Separation Authority changed to “General Separation” or “Due to Injury ” and the Separation Code changed to one that reflects “General Separation” or “Due to Injury” on his DD Form 214.
2.        Applicant wants h is discharge upgraded to Honorable or General (Under Honorable Conditions) and RE code changed so he can reenlist in the military.
3 .       Applicant contends he was forthcoming about his previous medical history to his recruiter , who told him not to disclose that information on his enlistment application .
4 .       Applicant provided character references and documentation pertaining to his employment and education since being discharged.

Decision

Date: 20 1 1 1101          Location: Washington D.C .         R epresentation : none

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 Board complete d a thorough review of the circumstances that led to the Applicant’s discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any 6105 counseling warnings, non-judicial punishments, or trials by court-martial for violation s of the Uniform Code of Military Justice. The Applicant’s command administratively processed him for separation when it was disclosed that he had taken medication for juvenile depression when he was 15 years old , and it had not been documented in his enlistment application. In the Applicant’s letter to the NDRB, he states that after six weeks of seeing no improvement to an ankle injury, he requested to be sent home while the ankle healed. He was told no and approximately one week after being told no, he advised his Senior Drill Instructor that he had lied on his application about taking medications when he was 15. The Marine Corps investigated and confirmed this admission and subsequently discharged him as a Fraudulent Entry. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived his rights to consult with a qualified counsel and submit a written statement .

: (Non-decisional) The Applicant wants the Separation Authority changed to “General Separation” or “Due to Injury ” and the Separation Code changed to one that reflects “General Separation” or “Due to Injury” on his DD Form 214. The NDRB has no authority make changes to the Separation Authority or Separation Code. Only the Board for Correction of Naval Records ( http://www.donhq.navy.mil/bcnr/bcnr.htm ) can make such changes. Regulations limit the NDRB’s review to a determination of the propriet y and equity of the discharge.

: (Non - decisional) The Applicant wants h is discharge upgraded and RE code changed so he can reenlist in the military. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Neither a less than fully honorable discharge nor an unfavorable RE code is, in itself, a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change an RE code. Only the Board for Correction of Naval Records can make changes to RE codes.

: (Decisional) ( ) . The Applicant contends he was forthcoming about his previous medical history to his recruiter who told him not to disclose that information on his enlistment application . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support his claim that his recruiter told him to lie on his enlistment application. The

Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Ultimately, however, it was the Applicant who came forward and admitted that he had lied on his application. The Marine Corps was rehabilitating the Applicant for an ankle injury and had no intention of discharging him. No other Narrative Reason for Separation more accurately describes why the Applicant was discharged. The Board determined the assigned N arrative R eason for S eparation and characterization of service are appropriate. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant provided character references and documentation pertaining to his employment and education since being discharged . The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. However, in this case, the Applicant was in an entry-level status (within the first 180 days of enlistment) . Marine Corps regulations direct that members notified of intended recommendation for discharge while in an entry-level status receive an “ Uncharacterized ” characterization of service except in circumstances where service has been so meritorious that an Honorable is clearly warranted. The Applicant’s record showed no meritorious service that would warrant an Honorable characterization of service. The NDRB determined that considering post-service conduct and achievements to change the characterization of service from U ncharacterized would be against regulations. 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 for additional information.

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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USMC | DRB | 2010_Marine | MD1002100

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