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USMC | DRB | 2012_Marine | MD1200344
Original file (MD1200344.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111128
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: MEDICAL
        
Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19980820 - 19990215     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990216     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010319      H ighest Rank:
Length of Service : Y ea rs M on th 04 D a ys
Education Level:        AFQT: 67
MOS: 6412
Proficiency/Conduct M arks (# of occasions): 4.3 ( 5 ) / 4.1 ( 5 )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:              SCM:              SPCM:             CIVIL ARREST:

Retention Warning Counseling :

- 20000308 :       For failure to pass the Marine Corps Physical Fitness Test by having a score of 139, specifically for a 29:54 run-t ime failing to meet the minimum requirements.

- 20000324 :       For being determined to be physically unfit and being assigned to the Remedial Conditioning Program (RCP) for at least 30 days.

- 20000406 :       For following deficiencies: Patella Femoral Pain Syndrome.

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.       The Applicant contends his characterization is based solely on his weight control issues during the time of his treatment for Patellar Femoral Pain Syndrome.
2 .       The Applicant contends he desired to appeal the decision but was coerced with the threat of a less favorable discharge for failure to obey a lawful order.
 3.       The Applicant contends his discharge is inequitable since his commanding officer recommended an Honorable characterization and his Judge Advocate General (JAG) also told him an Honorable characterization was warranted.
Decision

 Date: 20 1 2 11 1 9            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 Applicant’s record of service included 6105 counseling warnings . Based on the Applicant’s unsatisfactory performance of duties while assigned to the weight control program , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel but waived his right to submit a written statement . The Applicant was notified of separation proceedings for C ondition N ot a D isability and U nsatisfactory P erformance while assigned to the weight control program.

: (Decisional) ( ) . The Applicant contends his characterization is inequitable since it is based solely on his weight control issues during the time of his treatment for Patellar Femoral Pain Syndrome. The Applicant also claims that his medical treatment was a contributing factor to his discharge. Although the Applicant was on limited duty for an extended period due to his medical condition, his medical condition does not absolve him of his responsibility to maintain proper height and weight standards. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

: (Decisional) ( ) . The Applicant contends he desired to appeal the decision but was coerced with the threat of a less favorable discharge for failure to obey a lawful order. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was coerced into waiving his appeal. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable since his c ommanding o fficer recommended an Honorable characterization and his JAG counsel also told him an Honorable characterization was warranted. The commanding officer’s recommendation for separation is just that, a recommendation. In a similar fashion, the advice from the JAG counsel is only his professional opinion . Neither the commanding officer nor the JAG counsel was the Separation Authority. The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. The Separation Authority was the Commanding General, 2 nd Marine Aircraft Wing , and it was stated in the Applicant’s notification of separation proceedings that the Commanding General would determine the characterization of service. Although the discharge for failing to maintain standards was proper, the NDRB determined it was inequitable. B ased on the s quadron c ommanding o fficer’s comments recommending an Honorable characterization and the member’s service record , which contained no misconduct or other significant negative aspects of service , the NDRB determined an upgrade to Honorable was warranted.

As to the Narrative Reason for Separation of Unsatisfactory P erformance, the NDRB determined this to be inequitable as the Applicant made a concerted effort to remain within weight standards. The Applicant, however, was also notified of separation processing for Condition Not a Disability due to his Patellar Femoral Pain Syndrome. The NDRB determined this to be a more applicable Narrative Reason for Separation than Unsatisfactory Performance and voted 5-0 to change the Narrative Reason for Separation to Condition Not a Disability. 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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to . 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.

Pertinent Regulation/Law

 A. Paragraph 6206, UNSATISFACTORY PERFORMANCE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 to 31 August 2001.
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 .




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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