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USMC | DRB | 2011_Marine | MD1101776
Original file (MD1101776.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110630
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service
Prior Service:
Inactive:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940524     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19960630      H ighest Rank:
Length of Service:
         Inactive:        Y ea rs M on ths 29 D a ys
         Active:  Y ea rs M on ths 08 D a ys
Education Level:        AFQT: 66
MOS: 0231
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:             SCM:             SPCM:            CC:

Retention Warning Counseling :
- 19950507 :       For unexcused absence on 19950507.

- 19950806 :       For unexcused absence on 19950805 and 19950806.

- 19950910 :       For unexcused absence on 19950909 and 19950910.

- 19951015 :       For unexcused absence on 19951014 and 19951015.

- 19960310 :       For unexcused absence on 19960210 - 19960211 , 19960309 - 19960310 .

- 19960414 :       For unexcused absence on 19960413-19960414.

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 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
18 August 1995 until 31 August 2001.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C. Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.

 D . 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 was not fit for full duty and drill after 7 May 1995 due to medical problems as a result of injury to his right eye sustained from shrapnel from a n exploded MK-19 g renade launcher .
2.       The Applicant contends that his command was prejudice d toward him , did not believe him about the problem with his eye , and refused his request s for authorized absence s , drop to the Individual Ready Reserve ( IRR ) , and to add statements and medical evidence to his P age 11 records.
 3.       The Applicant contends his command err oneously applied medical regulation s in discharging him.
4 .       The Applicant suggests his post-service achievements warrant consideration for an upgrade.

Decision

 Date: 20 1 2 0904            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 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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The record shows the Applicant received six 6105 counseling warnings for unauthorized absences from 7 May 1995 to 14 April 1996. The Applicant’s record of service included numerous correspondences from his command attempting to persuade him to make his medical appointments and fulfill his obligated duty as a Marine. Based on the Applicant’s missed drills in the Ready Reserve, command administratively processed for separation. The Applicant was notified of administrative separation processing using the procedure, however , there is no evidence the Applicant re ceived, signed , and returned his administrative separation package, indicating whether he exercised or waived rights to consult with a qualified counsel, to submit a written statement for consideration by the S eparati on A uthority, and to request an administrative board.

The Applicant provided pictures and ultrasound images as additional documentation for the NDRB’s consideration or to rebut the Government’s presumption of regularity that was not already documented in his official military record of service and medical record .

: (Decisional) ( ) . The Applicant contends he was not fit for full duty and drill after 7 May 1995 due to medical problems as a result of injury to his right eye sustained from shrapnel from a n exploded MK-19 grenade launcher . The Applicant contends that his command was prejudice d toward him , did not believe him about the problem with his eye, and refused his request s for authorized absence s , drop to the IRR, and to add statements and medical evidence to his P age 11 records. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. There is substantial evidence in the records to conclude that the Applicant sustained no ne -debilitating injuries from the accidental explosion of the MK-19 grenade launcher while the Applicant was taking part in a USMC training event on 21 September 1994. The record shows the Applicant received treatment for shrapnel injuries to his right orbit, right thigh, right great toe, avulsion right forearm. After being release d from the hospital on 24 September 1994, the Applicant was cleared for full duty on 5 October 1994. The Applicant did see an o p h tha l mologist on 30 September 1994 for a metallic foreign body to right lower eyelid contusion with small entrance wound. It is not noted if the foreign body was removed . The Applicant’s separation physical of 27 October 1994 does not show any residual disability and no complaints from the Applicant. The record shows that after the Applicant missed his 7 May 1995 drill period, his S ergeant Major a rranged a medical appointment for the Applicant for 28 Jun 1995. However, the Applicant did not show and reported that he could not get time off from his civilian job. The record shows that the Applicant did not show up for several medical

appointments , and his command ’s medical staff made several attempts via phone to reach him in regards to his appointments. The Applicant was ordered by his command to report to the command flight surgeon on 8 July 1995 after missing the previous weekend’s drills , which he did. The flight surgeon recorded that he was concerned the Applicant may be suffering from mental illness . The Applicant stated to the flight surgeon that he had no issues that affected his civilian job. The Applicant was found fit for full duty but given a mental health consul t . There is no evidence in the record , nor did the Applicant provide any, that the Applicant was prejudicially referred to mental health because his command thought he was suffering from P ost-Traumatic Stress Disorder . There is no evidence in the record if the Applicant followed up with mental health.

The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB did not find any reference to a medical diagnosis or proclamation of the Applicant being unfit for full duty in the Applicant’s service record to support his claims , and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claims. Though the Applicant may feel that his in-service shrapnel injuries were the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. There is no evidence the Applicant requested and was denied authorized absences on the basis of his injuries. There is documented evidence his command tried to get him proper medical care , but he failed to show up for most of his appointments. Relief denied.

: (Decisional) ( ) . The Applicant contends his command erroneously applied medical regulation s in discharging him. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The record reflects the Applicant was discharge d in accordance with the Marine Corps Separation and Retirement Manual for failure to participate in the R eady R eserve. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

4 : (Decisional) ( ) . The Applicant suggests his post-service achievements as evidenced by his good conduct in civilian life warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the Applicant’s statements, and discharge process, the Board found, by a majority rule, that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . 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.



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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