Upgrade.Vet

USMC | DRB | 2011_Marine | MD1101865

Original file (MD1101865.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110802

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)       20020828 - 20020922     Active:          20020923 - 20051001

Period of Service Under Review:
Date of Current Enlistment: 20051002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081126      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 44
MOS: 0311
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (WITH COMBAT “V”) ICM (2) (2) AFMU A LoA (2)

Periods of UA / CONF :

NJP:

- 20080102 :       Article 92 (Derelict in the performance of duty)
         Article (False official statement, 2 specifications )
         Specification 1: Stating that the armory sight count was completed
         Specification 2: Stating that the armory security system was armed
         Awarded: RESTR EPD Suspended: RESTR

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20080211 :      For your assignment to the Marine Corps Body Composition Program (BCP). Specifically, you failed to properly maintain body composition standards as required by MCO P6100.12. Your actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC. You are advised that assignment to the BCP is for a six month period.

- 20080702 :      For your unsatisfactory performance while assigned to the BCP. Due to insufficient effort, you have not met your weight/body fat reduction goals as prescribed by the Medical Officer. Specifically, instead of losing 29 pounds and 13% body fat, you have only lost 3 pounds and 1% body fat thus far. Further, your PFT score has showed little improvement over this period; it’s now a 143 vice a 135 when you started. In addition, you have failed to turn in your monthly caloric intake sheets and PT logs.

- 20080730 :       For your failure of the BCP.

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:

Pertinent Regulation/Law

A. Paragraph 6206, UNSATISFACTORY PERFORMANCE , 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 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 his record of service warrants consideration for upgrading his discharge to Honorable.

Decision

Date: 20 1 20202 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. The NDRB determined that the Applicant’s Post-Traumatic Stress Disorder and Traumatic Brain Injury were not mitigating factors in the Applicant’s characterization of service and narrative reason for separation.

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 Applicant’s record of service included 6105 counseling warnings and non-judicial punishment for o f the Uniform Code of Military Justice: Article 92 ( Failure to obey order or regulation, 1 specification) and Article 107 (False official statement, 2 specifications). The Applicant’s service record also reflects that he failed to meet and maintain Marine Corps body weight and body fat standards. Based on the Applicant’s failure to meet those standards after being assigned to the Body C omposition Program (BCP) , his command administratively processed him for separation. When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel and submit a written statement .

: (Decisional) ( ) . The Applicant contends his record of service warrants consideration for upgrading his discharge to Honorable. Despite a service member’s prior record of service, certain situations resulting in a determination of unsati s factory performance warrant separation from the Marine Corps to maintain unit readiness and/or mission accomplishment . Failure to conform to weight standards due to apathy or a lack of self - discipline is one such situation. During the Applicant’s time on the BCP, however, he was never labeled as apathetic or lacking self-discipline, only that he had not made sufficient progress. Although the Applicant failed to maintain weight and body fat standards, the Board found that his service was better illustrated by his “ heroic achievement” and “superior performance ” in combat as evidenced by documentation describing his valorous actions while participati ng in Operation Iraqi Freedom. The Applicant was awarded a Purple Heart Medal and Navy and Marine Corps Achievement Medal with Combat “V” for his actions in combat. After considering the facts and circumstances that led to his performance being deemed unsatisfactory , consequently resulting in his discharge , the NDRB concluded that his failure to meet weight and body fat standards was insignificant when compared to his performance in combat . The NDRB is convinced that the Applicant’s command did not give due consideration to all aspects of his service when processing him for separation . The Board found the assigned characterization of service and narra tive reason for separation was inequitab le and concluded that this issue is grounds for full relief. Relief granted.

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 The Board determined that the Applicant’s service in combat, during which he was wounded and also recognized for his valor, better defined his overall service and far outweighed his failure to meet weight and body fat standards . As a result, he is deserving of no characterization of service less than Honorable. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to .

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 | MD1101865

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