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USMC | DRB | 2011_Marine | MD1100015
Original file (MD1100015.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100930
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20081120 - 20090315     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20090316     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090915      H ighest Rank:
Length of Service : Y ea rs M on ths 30 D a ys
Education Level:        AFQT: 88
MOS: 8011
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR          Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle EX NDSM

Periods of UA / CONF :     NJP: NONE        SCM: NONE        SPCM: NONE       CC: NONE

Retention Warning Counseling: 1

- 20090731 :      For diagnosis of mid-back pain , which interferes with duties , specifically the inability to participate in routine training, rigorous exercise, conditioning hikes, and field duty .

Administrative Corrections to the Applicant’s DD 214

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

          “ ERRONEOUS ENTRY, OTHER ”
         
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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
          From Applicant:           From/To Representation:           From/To Congress member:        


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

Applicant’s Issues

 1 .       The Applicant seeks an upgrade because “ U ncharacterized” does not describe his true character.
 2 .       The Applicant seeks an upgrade because he completed basic training and served more than 180 days.

Decision

Date: 20 1 1 1129            Location: Washington D.C .         R epresentation : Civilian counsel

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’s record of service included 6105 counseling warning. On 19 August 2009, c ompetent medical authority diagnosed the Applicant with a mid-back sprain and significant k yphosis , which caused chronic pain. It was determined that the condition existed prior to entering the Marine Corps but was aggravated after entering the Marine Corps. The Applicant provided a personal statement and statements from immediate family members asserting he had n o history of such a condition prior to joining the Marine Corps. The Board presumes regularity in that the medical officer ’ s determination that the condition existed prior to service is accurate . The documentation provided by the Applicant does not rebut this presumption. Based on the Applicant’s statements, the Board is convinced that the Applicant was not aware that he had the condition prior to his military service . The Board is also convinced that the condition probably would not have been discovered had he not gone through the rigors of military training . Had all the relevant facts about the Applicant’s condition been known prior to his entering the Marine Corps, it is unlikely that the Applicant would have been allowed to enlist. Based on an error committed by the Marine Corps , and no fraudulent intent on the part of the Applicant, his command administratively processed him for separation. 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 a nd submit a written statement.

: (Decisional) ( ) . The Applicant seeks an upgrade because “ U ncharacterized” does not describe his true character. Marine Corps regulations direct that members notified of intended recommendation for discharge while in an entry level status (within the first 180 days of enlistment) 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. With respect to non-service related administrative matters, i.e., Department of Veteran Affairs benefits, civilian employment, etc., an U ncharacterized separation shall be considered as the equivalent of an Honorable or General (Under Honorable Conditions) characterization. The NDRB found the Applicant’s characterization of service to be appropriate as assigned. Relief denied.

: (Decisional) ( ) . The Applicant seeks an upgrade , because he completed basic training and served more than 180 days . Although the Applicant completed 184 days of service, the Board presumes regularity in that he was notified of intended recommendation for separation before the 180 th day. Without a separation package with the actual notification date, the NDRB presumes regularity in that the Applicant was notified before the 180 th day and was properly given an Uncharacterized characterization of service. The fact that the a ttending medical officer made the diagnosis and re commendation for separation on 19 August 2009 (approximately 155 days into his enlistment) supports th e government’s presumption of regularity in this case. There is no evidence in the record that he was notified of intended separation after 180 days had pas sed . The NDRB found the Applicant’s discharge proper and the characterization of service and narrative reason for separation to be appropriate as assigned. 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.

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, MCO P1900.16E), effective 15 August 1995 until 31 August 2001, 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 .


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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