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USMC | DRB | 2011_Marine | MD1101084
Original file (MD1101084.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110318
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)       20060531 - 20060820     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060821     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100820      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 75
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoA CoC MM

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080714 :       Unreadable

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

 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 desires to become eligible for the GI Bill.
2.       The Applicant contends he was told he would receive an Honorable characterization, was not notified he would receive a n Under Honorable Conditions (General ) characterization, and was not given an opportunity to seek legal recourse. He contends his command did not explain his P roficiency and C onduct (Pro/Con) average to him and the ramifications regarding his characterization of service.
3.       The Applicant contends he was not provided adequate time prior to separation to rectify his weight problem and was not provided the proper tools or opportunities to lose weight.
4.       The Applicant contends he was never afforded the opportunity to raise the issue of P ost -T raumatic S tress D isorder (PTSD) , because he believed he was going to receive an Honorable discharge. He also contends a Flight Surgeon said his inability to lose weight might be caused by PTSD and constant exhaustion due to operational tempo.
5.       The Applicant contends he served honorably with no misconduct, and his low Pro/Con marks were entirely based on his problem maintaining height/weight standards.
Decision

Date : 2012 06 07             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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 , and no misconduct resulting in non-judicial punishment or court-martial. The Applicant was discharged following completion of his required active service. Due to average Pro/Con marks of 4.1/3.8, he received a General (Under Honorable Conditions ) characterization of service.

: (Nondecisional) The Applicant desires to become eligible for the GI Bill. 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. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge
: (Decisional) ( ) . The Applicant contends he was told he would receive an Honorable characterization, was not notified he would receive an Under Honorable Conditions ( General ) characterization, and was not given an opportunity to seek legal recourse. He contends his command did not explain his Pro/Con average to him and the ramifications regarding his characterization of service. The record contained no evidence the Applicant was ever led to believe he would receive an Honorable characterization of service by his command. If his sergeants made this promise, it was not in their authority to make it. Separation due to completion of required active service does not require notification of the member regarding characterization of service to be received, nor is the member notified of legal rights as in administrative separations for misconduct or other reasons. Characterization of service upon completion of required active service is based solely upon the average Pro/Con marks over the current enlistment. Marines are counseled upon receiving each set of Pro/Con marks throughout their enlistment s . The Applicant’s Pro/Con marks averaged 4.1/3.8 over 10 occasions. In order to receive an Honorable characterization, a Marine’s average Pro/Con marks must be 3.0/4.0. The Applicant’s Pro/Con marks did not meet this benchmark. Therefore, the NDRB determined the Applicant’s characterization of service was appropriate as assi gned. Relief denied.



: (Decisional) ( ) . The Applicant contends he was not provided adequate time prior to separation to rectify his weight problem and was not provided the proper tools or opportunities to lose weight. The record shows the Applicant had numerous informal counseling sheets that addressed his weight, failure to attend remedial physical training (PT), and failure to bring appropriate attire to work with him in order to participate in remedial PT. The record shows the Applicant had trouble maintaining his weight throughout his enlistment and was provided adequate opportunities to correct his deficiencies as addressed in numerous informal counseling sheets. Relief denied.

: (Decisional) ( ) . The Applicant contends he was never afforded the opportunity to raise the issue of Post-Traumatic Stress Disorder (PTSD), because he believed he was going to receive an Honorable discharge. He also contends a Flight Surgeon said his inability to lose weight might be caused by PTSD and constant exhaustion due to operational tempo. The record contained no evidence the Applicant was suffering from PTSD, unusual stress , or any other medical problem that might have rendered him unable to correct deficiencies that were reflected in his Pro/Con marks and addressed during counseling sessions with in his command. If the Applicant believed he was suffering from PTSD, he had multiple opportunities to bring this to the attention of medical personnel during his separation process. Failing to do so does not change the fact that he warranted an Under Honorable Conditions (General) discharge. Additionally, the Applicant provided no documentation that he is suffering from, or has been diagnosed with, PTSD. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant contends he served honorably with no misconduct, and his low Pro/Con marks were entirely based on his problem maintaining height/weight standards. While the Applicant had no misconduct resulting in NJP or court-martial, the record showed numerous informal counseling sessions reflecting shortcomings that were subsequently reflected in his Pro/Con marks. The Applicant’s Pro/Con mark average alone warrants an Under Honorable Conditions (General ) characterization. Additionally, the informal counseling sheets in the record, as discussed in previous issues, reflect significant negative aspects of service that also warrant a n Under Honorable Conditions (General) characterization. Relief denied.

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 . 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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