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USMC | DRB | 2010_Marine | MD1002212

Original file (MD1002212.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100908

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

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

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20040923 - 20050710     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050711     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080422      H ighest Rank:
Length of Service : Y ea rs M on ths 11 D a ys
Education Level: 12      AFQT: 70
MOS: 0656
Proficiency/Conduct M arks (# of occasions): 4. 3 (3) / 4.2 ( 3 )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM GWOTSM NDSM

Periods of UA / CONF :

NJP: NONE        SCM: NONE         S PCM: NONE        CC: NONE

Retention Warning Counseling : 3
- 20070905 :       For assignment to Marine Corps Body Composition Program (BCP)

- 20080104 :       For unsatisfactory performance while assigned to the Marine Corps BCP

- 20080313 :       For failure to maintain body composition

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 6206, UNSATISFACTORY PERFORMANCE , 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 .

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

Applicant’s Issues

1.       The Applicant contends he should have received a medical discharge , because his failure to maintain Marine Corps Body Composition Program (BCP) s tandards was due to an injury sustained in the line of duty.
2.       (NDRB Issue ) The Applicant had no misconduct in his record and should have received an Honorabl e characterization of service.

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 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 included three 6105 counseling warnings citing BCP failures. Based on the Applicant’s BCP failures, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel and submit a written statement .

: (Decisional) ( ) . The Applicant contends he should have received a medical discharge , because his failure to maintain Marine Corps BCP s tandards was due to an injury sustained in the line of duty. The Applicant submitted no documentation to prove his medical condition caused him to be unable to maintain Marine Corps height and weight standards. While the Applicant submitted documentation showing he has been granted a disability rating by the VA due to a back injury received in service, this is not, in itself , sufficient reason to grant an upgrade. T he 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. The NDRB determined no change is warranted for this issue.

: (Decisional) ( ) . (NDRB I ssue) The record shows the Applicant had no misconduct that would have warranted a General (Under Honorable Conditions) characterization of service. His P roficiency and C onduct (Pro/Con) marks were 4.3/4.2 , which indicate s satisfactory service and are within standards to receive an Honorable characterization of service per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . Additionally, the Applicant’s narrative reason for separation was assigned as Unsatisfactory Performance , which is inconsistent with the record , as it appears that the Applicant was making attempts to get within standards . The record indicates the more appropriate narrative reason for separation would have been Weight Control Failure. The NDRB did not have the Applicant’s separation package to determine if he was also notified for Weight Control Failure as a reason for separation . In cases where no other reason for separation set forth in the MARCORSEPMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Since there is no record of the Applicant being notified for Weight Control Failure and since Unsatisfactory Performance does not accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge will change to Secretarial Authority and the characterization of service will change to Honorable.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to . 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, 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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USMC | DRB | 2010_Marine | MD1002212

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