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USMC | DRB | 2010_Marine | MD1002101
Original file (MD1002101.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:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20070420 - 20070513     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070514     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090911      H ighest Rank:
Length of Service : Y ea rs M on ths 27 D a ys
Education Level:        AFQT: 56
MOS: 0121
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS , Pistol SS , NDSM , GWOTSM

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. Paragraph 6215, WEIGHT CONTROL FAILURE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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

Applicant’s Issues

 Nondecisional Issues: The Applicant seeks an upgrade in his characterization of service at discharge in order to facilitate re-enlist ment in the Marine Corps.
Decisional Issues: The Applicant seeks an upgrade in the characterization of his service at discharge, contending that his current characterization was inequitable in that it was based solely on his battle for the loss of weight and that he had no negative counselings or misconduct of record while serving.

Decision

 Date: 20 1 1 12 14           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 NDRB 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 identified one decisional issue to the NDRB. As a function of the discharge review process, the Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent stan dards of equity and propriety.

The Applicant entered military service at age 21 on a four-year enlistment agreement with a guaranteed contract of Legal/Administration Option. The Applicant’s enlistment record reflects entry into military service with a waiver to enlistment and induction standards for pre-service illegal drug use (marijuana). The Applicant completed 2 years and 4 months of his four-year enlistment obligation before be ing separated due to weight control failure. The Applicant’s record of service does not document any retention-counseling warning s or violations of the Uniform Code of Military Justice. The Applicant’s service record documents that his Good Conduct Medal start date was the date of his enlistment. The Applicant’s official service record did not contain the Applicant’s administrative separation package to determine whether the Applicant waived his rights to consult with a qualified counsel or submit a written statement. In this instance, the Board must presume regularity in the conduct of governmental affairs that the Applicant was notified properly and that he was afforded his right to consult with counsel and to submit a statement to the separation authority.

Nondecisional Issue The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment in the armed forces. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment. The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable “ RE ” code is, in itself, a bar to reenlistment. Additionally, o nly the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. The Applicant may petition the BCNR using a standard DD Form149. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

Decisional Issue (Propriety/Equity) . The Applicant seeks an upgrade in the characterization of his service at discharge, contending that his current characterization was inequitable in that it was based solely on his battle for the loss of weight and that he had no negative counselings or misconduct of record while serving. The Applicant’s military service record contains no derogatory information. Pursuant to the Marine Corp s Separation and Retirement Manual , characterization of separation should be Honorable, unless a General (Under Honorable Conditions) is warranted in accordance with paragraph 1004 and table 1-1 . The NDRB determined the Applicant had no documented substandard performance or misconduct that would warrant a General (Under Honorable Conditions) characterization as verified by the Good Conduct Medal start date being the Applicant’s date of enlistment (eligibility for the Good Conduct Medal is reset after any formal determination of misconduct). After a careful review of the Applicant ’ s medical records and official service records and taking into consideration the facts and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action, but did discern an inequity in the characterization of the Applicant’s service. The NDRB voted unanimously to upgrade the characterization of the discharge to Honorable , but the narrative reason for the discharge shall remain as issued. Relief granted.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall ; however, the narrative reason for separation shall remain WEIGHT CONTROL FAILURE. 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 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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