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USMC | DRB | 2012_Marine | MD1201176
Original file (MD1201176.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120501
Characterization of Service Received:
Narrative Reason for Discharge: DISABILITY, SEVERANCE PAY
Authority for Discharge: MARCORSEPMAN 8401 (DISABILITY, SEVERANCE PAY)

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20061019 - 20061218     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061219     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20101030      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 69
MOS: 0311
Proficiency/Conduct M arks (# of occasions): / (10)     Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol ACM KDM (2)

Periods of UA / CONF :

NJP:

- 20080313 :       Article 113 (Misbehavior of sentinel or lookout , 2 specifications )
         Specification 1: On 20080221 at approximately 1645, SNM was caught by the SOG with a magazine at MOP 13
         Specification 2: On 20080304 at approximately 1400, the SOG found paper airplanes in the vicinity of MOP 20, where SNM was the sentry
         Awarded: Suspended:

- 20090325 :      Article (General A rticle, SNM lied to his platoon commander when questioned about the abrasions to his face, he claimed he was hurt while riding in raft which flipped over in a pool and he scraped his face on the side of the pool ; in reality, he was involved in a bike accident in the Republic of the Philippines where the police were notified and responded to the incident)
         Awarded: Suspended: ($300.00)

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080313 :       For violation of UCMJ , two counts of A rticle 113 for which I received NJP on 20080313

- 20080422 :       For following deficiencies : A consistent pattern of being late to your appointed place of duty

- 20090325 :       For your recent NJP held on 20090325 for violation of A rticle 134 of the UMCJ



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/Change 2), effective 06 June 2007 to present, paragraph 8401 , DISABILITY DISCHARGE WITH SEVERANCE PAY .

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 wants to be eligible for education benefits.
2.       The Applicant contends his characterization is unfair , because he had improved his P roficiency (Pro) and C onduct (Con) in his new unit before being injured.
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date : 20 1 3 0221            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall DISABILITY, SEVERANCE PAY .
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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 113 ( Misbehavior of sentinel or lookout , 2 specifications) and Article 134 ( General A rticle , 1 specification of obstruction of justice ). The Applicant complained of chronic pain in his left knee from injuries occurred in service. The Applicant was the subject of a Physical Evaluation Board (PEB) on 22 July 2010 and was found unfit for continued Naval service. The Applicant accepted the findings and waived his right to submit new or additional information or demand a formal hearing. Based on the PEB findings, the Applicant was administratively separated for D isability , S everance P ay.

: (Nondecisional) The Applicant wants to be eligible for education benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

: (Decisional) ( ) . The Applicant contends his characterization of service was unfair , because he had improved his Pro and Con marks i n his new unit before being injured. The Applicant was administratively separated for disability and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, which included three retention warnings, two NJPs, and below-average Pro/Con marks, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted . Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant suggests his post-service achievements as evidenced by his employment with Halliburton warrant 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 General (Under Honorable Conditions). 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 DISABILITY, SEVERANCE PAY . 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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