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USMC | DRB | 2012_Marine | MD1201060
Original file (MD1201060.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120410
Characterization of Service Received:
Narrative Reason for Discharge: DISABILITY, EXISTED PRIOR SERVICE, PEB
Authority for Discharge: MARCORSEPMAN 8404

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20071213 - 20080810     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080811     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100530      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 72
MOS: 5811
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 :

- 20090714 :       For disobeying A rticle 86 of the Uniform Code of Military Justice, specifically , you were not at accountability formation at 0600 on 200907 14, you failed to obey these orders when you failed to appear for morning accountability formation until 0815

- 20091104 :       For disobeying A rticle 86 of the Uniform Code of Military Justice , specifically , you were not at accountability formation at 0630 on 20091104 , you failed to obey these orders when you failed to appear for accountability formation until 0645

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          Block 11, Primary Specialty “ 5811 Military Police ”
         “ 2008 08 11 ”
         “ 01 09 20 ”
          “ ”
          “ DISABILITY, EXISTED PRIOR SERVICE, PEB ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.


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) paragraph 8404, effective 01 September 2001 until Present, DISCHARGE FOR DISABILITY EXISTING PRIOR TO SERVICE .

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 he did not have asthma or allergy issues prior to enlistment.
2.       The Applicant contends he was discharged due to a medical condition of no fault of his own.

Decision

Date: 20 1 3 0213            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall DISABILITY, EXISTED PRIOR SERVICE, PEB .
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 for violation s of the UCMJ: Article 86 . Based on the Applicant’s medical conditions of asthma and allergies , command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review . However, t he Applicant did have a Physical Evaluation Board (PEB) where it was determined the Applicant was unfit for duty, his asthma was a preexisting condition, and he was recommended to be separated from Active Duty.

: (Decisional) ( ) . The Applicant contends he did not have asthma or allergy issues prior to enlistment. The Applicant provided his U.S. Department of Veterans Affairs (VA) rating decision, entrance medical exam, and physical dated 24 November 2009 to support his contention. On 03 November 2011, the VA determined that the Applicant’s asthma and allergic rhinitis were at least as likely as not caused by or aggravated by military service. However, 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 Medical Evaluation Board (MEB) proceedings dated 12 November 2009 had checked the box that the Applicant’s asthma did not exist prior to service and that the Applicant failed to meet retention standards. The M EB writeup , dated 17 December 2009, stated the Applicant’s allergy-type symptoms existed prior to entering the military and concluded that the Applicant’s conditions preclude d further useful service. Regardless of the conflicting MEB reports on his conditions being preexisting or not , on 05 April 2010 , the PEB (a higher authority than the MEB) determined the Applicant was unfit for duty, his asthma was a preexisting condition, and recommended that he be separated from Active Duty. The refore, the NDRB determined the Applicant’s discharge was proper and the narrative reason of Disability, Existed Prior Service, PEB was correct . Relief denied.

: (Decisional) ( ) . The Applicant contends he was discharged due to a medical condition of no fault of his own. The PEB determined the Applicant was unfit for duty and recommended that he be separated from Active Duty . T herefore, the separation was proper and warranted as per M arine Corps Separation and Retirement Manual paragraph 8404. 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 Applicant had two 6105 counseling warnings for violating the UCMJ. The NDRB did not have the Applicant’s administrative separation package or a record of his P roficiency and C onduct marks. Therefore, the NDRB presumed regularity in the conduct of g overnment affairs and determined the characterization of General (Under Honorable Conditions) was warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found Therefore, the awarded characterization shall and the narrative reason for separation shall remain DISABILITY , EXISTED PRIOR SERVICE , PEB . The Applicant remains eligible for a personal appearance hearing for 15 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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