Upgrade.Vet

USMC | DRB | 2012_Marine | MD1200658

Original file (MD1200658.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120125

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: SERVICE CONNECTED DISABILITY

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20010925 - 20020818     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020819     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030207      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 61
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 :

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until P resent, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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 reentry code (RE) is inconsistent with his N arrative R eason for Separation and separation code .
2.       The Applicant contends he warrants an upgrade to Honorable , because he was separated for injuries received while in service and had completed all training and duties asked of him .

Decision

Date: 20130110          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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service indicates that he was administratively separated for Condition , Not a Disability (multiple stress fractures in both legs) after serving for 173 continuous days in the United States Marine Corps. The Applicant was not entitled to an administrati ve board.

: ( D ecisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his reentry code (RE) is inconsistent with his N arrative R eason for Separation and separation code . The Applicant’s DD Form 214 shows that his assigned RE code in B lock 27 is RE-3P . Per Appendix I of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , this stands for “Failure to meet physical/medical standards.” Upon removal of the disqualifying factor (in this case, healing of the stress fractures), the Applicant is eligible for reenlistment if a waiver is granted by the Commandant of the Marine Corps. RE-3P stated as a Physical Disability is a Navy reentry code. Per MARCORSEPMAN paragraph 6203 .2 , “ Whenever a Marine ’ s performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause. When the command suspects a physical condition interferes with the Marine ’ s effective performance of duty, the Marine should be referred to the appropriate medical authority. If examination by a medical officer confirms that the Marine is suffering from a physical condition apparently beyond the individual ’ s control and indicates that the condition is not a disability, initiate separation proceedings per paragraph 6303 or 6304. ” Competent medical authority at Marine Corps Recruit Depot, San Diego determined his multiple stress fractures were a condition, not a disability and properly initiated separation proceedings. His separation code of JFV1 in B lock 26 of his DD Form 214 corresponds correctly to the Narrative Reason for Separation of Condition, Not a Disability and refers to the fact that he was not entitled to an administrative separation board because he had less than 6 years of service and was not being recommended for an Under Other Than Honorable Conditions characterization of service . After careful review, the NDRB found no impropriety or inequity in the discharge and found no inaccuracies or contradictions on the Applicant’s DD Form 214. Relief denied.

: (Decisional) ( ) . The Applicant contends he warrants an upgrade to Honorable, because he was separated for injuries received while in service and had completed all training and duties asked of him. The Applicant was separated when he was diagnosed at entry level training with multiple stress fractures in both legs , and medical authorities determined his condition was unlikely to change if retained in the service. Even though the VA subsequently granted the Applicant 20 percent disability for his stress fractures, the NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB. Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization or Narrative Reason for Separation. An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as Under Other Than Honorable Conditions is authorized or Honorable

is clearly warranted. The Applicant had served for 173 days at the time of his discharge, had no misconduct that would rate an Under Other Than Honorable Conditions discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization. Therefore, the Applicant’s characterization of service of Uncharacterized was warranted. Additionally, his discharge for Condition, Not a Disability was proper. Relief denied.

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 remain . 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.

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 | 2012_Marine | MD1200658

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