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USMC | DRB | 2013_Marine | MD1300248
Original file (MD1300248.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121116
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             Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980512     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20020213      H ighest Rank:
Length of Service:
         Inactive:        Y ea rs M on ths 28 D a ys
         Active:  Y ea r M on ths 0 5 D a ys
Education Level:        AFQT: 74
MOS: 0341
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 :

- 19990615 :       For mandatory participation in the Select ed Marine Corps Reserve and failure to attend scheduled drills.

- 19990815 :       For mandatory participation in the Select ed Marine Corps Reserve and failure to attend scheduled drills.

- 19990913 :       For mandatory participation in the Select ed Marine Corps Reserve and failure to attend scheduled drills.

- 20010114 :       For mandatory participation in the Select ed Marine Corps Reserve and failure to attend scheduled drills.

- 20010203 :       For mandatory participation in the Select ed Marine Corps Reserve and failure to attend scheduled drills.

- 20010303 :       For mandatory participation in the Select ed Marine Corps Reserve and failure to attend scheduled drills.

- 20010408 :       For mandatory participation in the Select ed Marine Corps Reserve and failure to attend scheduled drills.








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. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 F ), effective 1 September 2001 until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.
D . 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 Ap plicant contends he should have been medically discharged, the Marine Corps agreed with a medical discharge, the Applicant provided all necessary records to support a medical discharge, but the Marine Corps lost his medical records and then mentioned them in his recommendation for discharge, though the records are not found in his official military record.
 2.       The Applicant contends his failure to drill was unintentional as the letters sent from his command instructing him to report were sent to his previous a ddress.
 3.       The Applicant contends he relied upon representations from Marine Corps personnel that he was on Temporary Not Physically Qualified (TNPQ) status.
4 .       The Applicant contends he was not given the opportunity to consult with counsel when notified of separation processing .

Decision

Date: 20 1 3 0821            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 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 included 6105 counseling warnings for failure to participate in required Marine Corps Reserve drills . The Applicant’s record of service included numerous correspondences from his command attempting to persuade him to fulfill his obligated duty as a Marine. Based on the Applicant’s missed drills in the Marine Corps Reserve, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends he should have been medically discharged, the Marine Corps agreed with a medical discharge, the Applicant provided all necessary records to support a medical discharge, but the Marine Corps lost his medical records and then mentioned them in his recommendation for discharge, though the records are not found in his official military record. 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. Although the Applicant provided documentation that his civilian doctor recommended he be medically discharged and his command noted that he should have been evaluated for a medical discharge in 2000, there is nothing in the records showing that the Applicant was recommended for or processed for a medical discharge. A civilian doctor’s recommendation does not warrant a medical discharge nor does it serve as approval of a medical discharge. There is also nothing in the records that the Marine Corps approved a medical discharge. Without documentation to show that he was being processed for or approved for a medical discharge, the NDRB determined relief is not warranted. Relief denied.
: (Decisional) ( ) . The Applicant contends his failure to drill was unintentional as the letters sent from his command instructing him to report were sent to his previous address. The Applicant’s record reflects that on 19 May 1998 the Applicant signed the Statement of Understanding Upon Enlistment in the Marine Corps Reserve that states he will be required to attend drills and training periods as prescribed and that he must keep his Commanding Officer informed of his current address and phone number. N ot receiv ing correspondence from his command does not warrant relief. Relief denied.




Issue 3: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends he relied upon representations from Marine Corps personnel that he was on TNPQ status. A review of the records shows that his command exerted significant amounts of time and effort to keep the Applicant in a satisfactory drilling status. There was documentation that the Applicant was in a TNPQ status for some time and then was switched to an Unsatisfactory status. However, his command offered multiple opportunities to rescind the Unsatisfactory drill periods and accommodate the Applicant to appear for drill so the Applicant could be processed medically or be allowed to participate for the remainder of his required drills. On repeated occasions, though, the Applicant failed to appear and continually fell back upon the excuse that his doctor recommend ed he not participate in drills despite serving as a civilian law enforcement officer. The purpose of bringing the Applicant back to a satisfactory drilling status was not to send him into the field but to determine whether or not he should be medically discharged. After a complete review of the records, the NDRB determined relief is not warranted and that his discharge was proper and equitable. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends he was not given the opportunity to consult with counsel during the separation process . A review of the Applicant’s separation process indicates he signed the Acknowledgment of Rights and waived his right to consult with a qualified counsel. If the Applicant had elected his right to consult with counsel, he would then have been afforded the opportunity to consult with counsel. The NDRB determined there was no impropriety associated with the discharge process. 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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