ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:
        
Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20050418 - 20050522     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20050523    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20071029     Highest Rank:
Length of Service: Year(s) Month(s) 04 Day(s)
Education Level:        AFQT: 64
MOS: 5811
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol

Periods of UA/CONF:

NJP:

- 20060731:      Article (Absence without leave; did on or about 0600, 1100 July 2006, without authority, absent himself from his place of duty to wit: Provost Marshall’s Office, and did remain so absent until on or about 2130, 14 July 2006. )
         Awarded: Suspended:

- 20070321:      Article (Absence without leave; Did on or about 1000, 23 Feb 2007, without authority fail to go at the time prescribed to his appointed place of duty, to wit Branch Medical Clinic.)
         Article (False official statement; Did on or about 17 Jan 2007, with intent to deceive sign an official record, to wit, Voluntary sworn statement, make to an Investigator an official statement, to $100.00 was in his bank account which statement was false in that he knew there were no funds in the account.)
         Article (Making, drawing, or uttering check, draft, or order without sufficient funds; 3 specifications)
         Specification 1: Did on or about 10 Oct 2006 with intent to defraud and for procurement of lawful currency and wrongfully and unlawfully uttered checks to the 7 Day Store in the amount of $15.11 from an account with insufficient funds.
         Specification 2: Did on or about 20 Dec 2006 with intent to defraud and for procurement of lawful currency and wrongfully and unlawfully uttered checks to the 7 Day Store in the amount of $36.17 from an account with insufficient funds.
         Specification 3: Did on or about 27 Dec 2006 with intent to defraud and for procurement of lawful currency and, wrongfully and unlawfully uttered checks to the 7 Day Store in the amount of $29.13 from an account with insufficient funds.
         Awarded: Suspended:


SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20060731:      For Article 86 (Absence without leave from 11 July 2006 to 14 July 2006.)


Administrative Corrections to the Applicant’s DD 214

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

         “MARCORSEPMAN 6203.2”
        
The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, 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 that he never received targeted physical therapy to help rehabilitate his knee and therefore; was wrongfully denied the opportunity to complete his enlistment and receive an Honorable discharge.

Decision


Date: 20141030           Location: Washington D.C.        Representation:

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 governmental affairs 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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 specification), Article 107 (False official statement, 1 specification), and Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds, 3 specifications. Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Decisional) () . The Applicant contends that he never received targeted physical therapy to help rehabilitate his knee and therefore; was wrongfully denied the opportunity to complete his enlistment and receive an Honorable discharge. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the evidence submitted by the Applicant does not prove, nor did his service or medical record show, any evidence to support this contention. The Applicant submitted an undated letter from the Medical Director Diplomate from the U. S. Public Health Service stating that “It is my professional opinion that had the Veteran received appropriate physical therapy following his surgery, he would probably have regained full function within a reasonable period and been able to fulfill the physical requirements of Marine Corps service”. However, on 19 September 2007, the Senior Medical Officer Albany Branch Medical Clinic submitted a letter to the Commanding Officer, Marine Logistics Base, Albany, Georgia, that referenced the specialty evaluation note by Orthopedic Surgeon stating “SNM has been evaluated for his right knee pain. He has had pain since an eighth grade football injury. He had an exacerbation of his pain after a motor vehicle accident in October of 2006. SNM has had physical therapy, orthopedic consultation and surgery (arthroscopy showing no pathological injury) to address his condition. His last orthopedic evaluation (enclosure (1)) placed him on 6 months of limited duty with option of cancelling at any time. It was stated that if after completion of the 6 month Limited Duty period, his symptoms had not resolved, that he should be considered for administrative separation verse PEB separation.” The document goes further to state that “The knee pain is not a surgical problem.”

In further review of the Applicant’s medical records, it does show that he was given a consult to go to physical therapy shortly after his knee surgery. The record also shows a prior history of knee issues in which he did go to physical therapy while in-service prior to the accident in October 2006. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. When notified of separation on 20071001, the record of evidence clearly shows the Applicant waived his rights to submit any statements in rebuttal. If the Applicant felt he was being unjustly discharged, it was his obligation to contest those charges at the time they were made. Competent medical authority found that the Applicant was suffering from a physical condition apparently beyond his control and indicated that the condition is not a disability and he was subsequently discharged for condition, not a disability.

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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain CONDITION NOT A DISABILITY. 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