Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101678

Original file (MD1101678.rtf) Auto-classification: Denied

ex-, USMCR

Current Discharge and Applicant’s Request

Application Received: 20110701

Characterization of Service Received:

Narrative Reason for Discharge: DISABILITY, SEVERANCE PAY

Authority for Discharge: MARCORSEPMAN 8401 DISABILITY DISCHARGE WITH SEVERANCE PAY

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20080617 - 20090621     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080617     Age at Enlistment: 17
Period of E nlistment : 8 Years Months (Reserve ROEP 6x2)
Date of Discharge: 20101030      H ighest Rank: LCpl
Length of Service:
         Inactive:        01 Year 00 Month(s) 04 Day(s)
         Active: 01 Year 04 Month(s) 08 Day(s)

Education Level: 12      AFQT: 78
MOS: 3531 (Motor Transport Operator)
Proficiency/Conduct M arks (# of occasions): 4.4 ( 5 ) / 4.4 ( 5 )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , CertCom

Periods of UA / CONF :

NJP: NONE        SCM: NONE        SPCM:    CC:     Retention Warning Counseling : NONE

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 8401 , DISABILITY DISCHARGE WITH SEVERANCE PAY , 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 503, Equity .

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part I I , Para 204 , Jurisdictional Limitations Authority for Review of Discharges .

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

Applicant’s Issues

1.       Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge to gain eligibility for Department of Veterans Affairs Educational Benefits programs.

2.       Decisional issues : The Applicant contends that his characterization of service at discharge was improper ; having been medically separated, his performance and conduct in service warrant an Honorable characterization of service vice a General (Under Honorable Conditions).

Decision

Date: 20 1 1 08 04 Location: Washington D.C .       R epresentation : NONE

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

Discussion

In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge a s determined by a P hysical E valuation B oard (PEB) , the action of the NDRB is restricted to matters of equity related to the characterization of service at discharge; the NDRB does not have jurisdictional authority to change the finding of a PEB. In response to the Applicant ’ s request for review , determinations by the PEB are presumed to be established facts by the NDRB. A s such, th e Applicant ’ s request for review was considered under the pertinent standards of equity to determine if any factors in this particular case merited a change in the assigned characterization of service at discharge .

The Applicant enlisted into the armed forces reserve under an eight-year reserve optional enlistment program: a six year obligation for mandatory drill ing with the Selected Marine Corps Reserve and the last two years of the contract allowing for transition to the Individual Ready Reserve , as requested, without obligation to drill. His service record reflects enlistment without any waivers to service enlistment standards. The Applicant elected a guarantee of Motor Transport Vehicle Operator for occupation specialty training. The Applicant’s record of service documents no retention counseling warnings and no punitive or non-punitive disciplinary actions during his period of service . The Applicant was separated from the military service pursuant to paragraph 8401 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) – D isability Discharge , with Severance Pay. This discharge allows for Marines not eligible for retirement by reason of physical disability, but found u nfit for duty by reason of physical disability, to be discharged from the Marine Corps with severance pay. The Secretary of the Navy Physical Evaluation Board 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 General (Under Honorable Conditions) characterization of service with an assigned reentry code of RE-3P - r ecommended for reenlistment by the C ommanding Officer upon removal of disqualifying factor.

Nondecisional issue: The Applicant seeks an upgrade in the characterization of his service at discharge to gain eligibility for Department of Veterans Affairs Educational Benefits programs. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational b enefits. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities . Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

Decisional Issue (Equity). Relief Warranted. The Applicant contends that his characterization of service at discharge was improper ; having been medically separated, his performance and conduct in service warrant an Honorable characterization of service vice a General (Under Honorable Conditions). The NDRB reviews the equity of an Applicant’s discharge individually, on a case-by-case basis. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standa rds of discipline of the Naval S ervice. Characterization of service at discharge is recogni tion of the quality of a Marine’ s performance and conduct. An Honorable characterization of service is warranted when the quality of a member’s service

generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record .

The NDRB reviewed all of the available records, supporting documents, facts, reason for discharge, and circumstances unique to this case. The Applicant was discharged due to the medical findings of a PEB , not due to misconduct. As such, the characterization of service at discharge is determined by the quality of the member’s total performance of duty and conduct during th at enlistment and should be Honorable, unless a General (Under Honorable Conditions) characterization is warranted. The Applicant ’ s record clearly reflects an in-service average proficiency and conduct marking of 4.4 and 4.4, respectively. Moreover , his final proficiency and conduct markings at time of discharge were 4.6 and 4.6 , and he was awarded a Certificate of Commendation during that same period. Finally, the Applicant’s service reflects no negative counseling entries , nor any disciplinary action that w ould justify the awarding of anything less than that warranted by service. The NDRB concluded that there was an inequity in the Applicant’s discharge action . Accordingly, by a vote of 5-0, the NDRB determined that the quality of the Applicant’s service met the standard of acceptable conduct and performance of duty and that an Honorable characterization of service was appropriate and was warranted. Relief , as requested, is provided .

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 , but the narrative reason for separation shall remain DISABILITY DISCHARGE WITH SEVERANCE PAY. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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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USMC | DRB | 2011_Marine | MD1101678

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