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USMC | DRB | 2013_Marine | MD1301501
Original file (MD1301501.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130702
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 (DEP)       19930825 - 19931017     Active:   1993 1018 - 199 8051 7
                                    199 8051 8 - 20040406

Period of Service Under Review:
Date of Current Enlistment: 20040407     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060623      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 46
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (3) (3) (3) (2) (2) (4) (3) (2)

Periods of CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050615 :       For providing support while being separated from your wife.
- 20060203 :       For Ar ticle 86 (Absence without leave; unauthorized absence from appointed place of duty)

- 20060 326 :      For reassignment to the Marine Corps BCP.

- 20060505 :       For unsatisfactory appearance and failure of the Marine Corps PFT.

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 discharge characterization is unjust , because he failed the physical fitness test due to being forced to take it with an injury .
2.       The Applicant contends his discharge characterization is unjust , because he was not afforded the proper medical assistance required to return to standards .
3.       The Applicant contends his post-service conduct is worthy of an upgrade .
4.       The Applicant contends his discharge is inequitable , because it was based on an isolated incident in 13 years of stellar service with no other adverse action .

Decision

 Date: 20 1 4 0212            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 in his current enlistment included 6105 counseling warnings . Based on the Applicant ’s inability to maintain Marine Corps height and weight standards , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised his right to submit a written statement but waived rights to consult with a qualified counsel and request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge characterization is unjust , because he failed the physical fitness test due to being forced to take it with an injury . 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 forced to take the physical fitness test with an injury. A review of his medical record confirmed that while he did have a history of the injury stated in his application, he was not receiving treatment for a reoccurrence of this injury during the period in which he failed the physical fitness test. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge characterization is unjust , because he was not afforded the proper medical assistance required to return to standards . The record of evidence shows the Applicant was assigned to the Body Composition Program (BCP) three times throughout his career. The Applicant was successfully provided the assistance required to be removed from BCP on his first two assignments. Marine Corps Order P6100.12 clearly states that Marines assigned to the BCP program three times will be administratively separated. The NDRB found this issue to be without merit. Relief denied.

3: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of an upgrade. The NDRB considers 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. The Applicant provided certification as a jail officer in the state of Virginia, a Portsmouth Sheriff’s Office certificate for attaining the silver level of fitness, a LawFit fitness leadership certification from the Fairfax County Criminal Justice Academy, and a basic jailor certification from the Portsmouth Sherriff’s Office . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. The Board determined the characterization of service received was appropriate considering the length of service and BCP failures . Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an isolated incident in 13 years of stellar service with no other adverse action . The Applicant received Honorable discharges for his first two enlistments from October 1993 to April 2004. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his third enlistment, he met the requirements for administrative separation due to Weight Control Failure. Per the Marine Corps Separation and Retirement Manual, characterization of service for Weight Control Failure should be Honorable or General as warranted by the service record. During his third enlistment, the Applicant had no adjudicated misconduct or other significant negative aspects of service to warrant a General discharge. Therefore, the NDRB voted to upgrade the Applicant’s characterization of service to Honorable. 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 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.

Pertinent Regulation/Law

 A. Paragraph 6215, WEIGHT CONTROL FAILURE , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 F ), effective 1 September 2001 until Present.
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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