Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101645

Original file (MD1101645.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110624

Characterization of Service Received:

Narrative Reason for Discharge: DISABILITY, SEVERANCE PAY

Authority for Discharge: MARCORSEPMAN 8401 [DISABILITY, SEVERANCE PAY]

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19960816 - 199610 0 7     Active:

Period of Service Under Review:
Date of Current Enlistment: 199610 0 8     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970215      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 85
MOS: 9900
Proficiency/Conduct M arks (# of occasions): / Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of UA / CONF :

NJP:    SCM:    SPCM: CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ DISABILITY, SEVERANCE PAY ”

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:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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

Applicant’s Issues

1. Applicant contends his discharge should be changed to Honorable due to a disabling injury he incurred while undergoing recruit training.

Decision

Date: 20 1 2 09 14 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall DISABILITY, SEVERANCE PAY .

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. T he Board complete d a thorough review of the circumstances that led to his 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 retention counseling warnings, commanding officer nonjudicial punishment s (NJP s ), or trial by courts-martial. The service and medical records indicate the Applicant injured his left knee on or about 22 October 1996 while participating in pugil stick training at Marine Corps Recruit Depot, Parris Island, South Carolina. After initial and follow-up medical evaluation, the Applicant was diagnosed with a complete tear of the left knee anterior cruciate ligament (ACL), a medical meniscus tear, medial cruciate ligament (MCL) strain, and a femoral bone bruise. The Applicant was referred to a M edical E valuation B oard (MEB) for analysis and recommendation on his fitness for continued service in the Marine Corps. On 31 October 1996 , the MEB referred the Applicant to the P hysical E valuation B oard (PEB). On 15 January 1997, the PEB determined the A pplicant to be Unfit for further duty due to Physical Disability and recommended he be separated from the Marine Corps in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). After being notified of his right to appeal the PEB findings and the recommended administrative separation process, the Applicant accepted the findings and did not file an appeal. The Applicant was separated from the Marine Corps on 15 February 1997 with an Uncharacterized discharge due to Disability, Severance Pay.

: (Decisional) ( ) . The Applicant contends his discharge should be changed to Honorable due to a disabling injury he incurred while undergoing recruit training. The Applicant was separated from the military service pursuant to paragraph 8401 of the MARCORSEPMAN - Disability Discharge, with Severance Pay. This discharge allows for Marines not eligible for retirement by reason of physical disability, but found unfit for duty by reason of physical disability, to be discharged from the Marine Corps with severance pay (Marines with less than 6 months of service not eligible for severance pay) . The Secretary of the Navy PEB made the determination for discharge due to disability, which was approved by the Commandant of the Marine Corps who then directed the Applicant be discharged. The Applicant was discharged subsequently by his local command; he received a n Uncharacterized (Entry Level Separation) characterization of service with an assigned reentry code of RE-3P - recommended for reenlistment by the Commanding Officer upon removal of disqualifying factor.

By regulation, an U ncharacterized description shall be used when separation is initiated while a service member is in an entry level status (first 180 days of continuous active service) , except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstances warrant characterization as U nder O ther T han H onorable C onditions, or when characterization of service as H onorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy. The Applicant ’ s service record did not indicate any unusual circumstances of personal conduct or performance of duty during his approximately four months in the military that would clearly warrant an H onorable characterization of service. Therefore, an Uncharacterized discharge is considered the most appropriate characterization of service. After careful review and consideration, the NDRB determined the Applicant’s discharge was proper and equitable and in accordance with the applicable orders and directives in effect at the time of his discharge. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the disability discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain DISABILITY, SEVERANCE PAY. Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

Pertinent Regulation/Law

A. Marine Corps Separation and Retirement Manual, (MCO P1900.16E), paragraph 8401 DISABILITY DISCHARGE WITH SEVERANCE PAY , states that per 10 U.S.C. 1203 and 1206, certain Marines not eligible for retirement by reason of physical disability, but found unfit for duty by reason of physical disability, may be discharged from the Marine Corps with severance pay. Eligibility requirements are contained in tables 8-2 and 8-3.

B. Marine Corps Separation and Retirement Manual, (MCO P1900.16E), Table 8-2, Eligibility Index Table for Regular Marines and Reservists on Active Duty for More Than 30 Days (Not to Include 45-Day Involuntary training for Active Duty), states that if the Marine is entitled to basic pay, and disability was incurred while entitled to basic pay, and if the member has less than 20 years of active service, and the percentage of disability is less than 30, and based upon accepted medical principles the disability is permanent or may be permanent, the action is to discharge the Marine with disability severance pay per 10 U.S.C. 1203, except that a Marine who has less than 6 months active service at separation is not entitled to disability severance pay. (See DoD Military Pay and Entitlement Manual, paragraph 40433.)

C . 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2011_Marine | MD1101645

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