ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to: END OF ACTIVE SERVICE OR SECRETARIAL AUTHORITY
        

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20110401 - 20111016     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20111017    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120425     Highest Rank:
Length of Service: Year(s) Month(s) 09 Day(s)
Education Level:        AFQT: 48
MOS: 8011
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

- 20120301:      Article (Insubordinate conduct toward warrant, noncommissioned, petty officer; willfully disobeying, 1 specification)
         Awarded: Suspended:

- 20120320:      Article (Assaulting, willfully disobeying a superior commissioned officer; willfully disobeying lawful order of superior commissioned officer, 1 specification)
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

- 20120206:      For medical diagnosis of patellofemoral syndrome, iliotibial band friction syndrome and flat foot, which interferes with your duties, specifically, the inability to participate in rigorous exercises, conditioning hikes, and field duty.

- 20120301:      For violation of UCMJ: Article 91

- 20120320:      For violation of UCMJ: Article 90

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, should read: “8011 Basic Marine”
        
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant contends he was not properly diagnosed or treated by Navy medical authorities.
2.       The Applicant contends he was improperly discharged for refusing an unlawful order to train.

Decision


Date: 20121125           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, and for of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer; willfully disobeying), and Article 90 (Assaulting, willfully disobeying a superior commissioned officer; willfully disobeying lawful order of superior commissioned officer). 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends he was not properly diagnosed or treated by Navy medical authorities. The Applicant’s service medical records show that he was diagnosed with patellofemoral syndrome, iliotibial band friction syndrome and flat foot. The Applicant made statements to medical personnel that he wanted a medical discharge from the Marine Corps, and other statements that he did not want to be in the Marine Corps. The Applicant was referred to the Mental Health Unit for psychological evaluation after he complained of sleep walking disturbances and depression. However, after an extended period of limited duty and medical treatment, the Applicant was cleared for full duty. The Applicant’s medical record shows that on 15 February 2012 he had zero objective findings, no ligamentous instability, and no signs of meniscal injury. The Applicant continued to complain of knee pain and refused to participate in training at School of Infantry. After refusing the orders from his chain of command, the Applicant was processed for administrative separation for a pattern of misconduct. During the process for administrative separation, the Applicant made a written statement to the Commanding General saying: “The Marine Corps is not for me. I tried to get out of basic training but they wouldn’t let me. I have absolutely no desire in training anymore; therefore I don’t want to be a liability for anyone else. I prayed to God and feel that this path in life is not what he has planned for me.” The Applicant completed his medical assessment for separation (DD Form 2807-1) and indicated he had no medical conditions that would prevent his separation from the Marine Corps, and specifically answered “no” to any knee trouble. The Applicant completed the medical assessment with a written statement: “I had bronchitis in boot camp. I’m all fine. I have no problems with my lungs. I’m all healthy and better now.” After the Applicant’s discharge, he went to a civilian doctor for examination of his knee. The result of an MRI report showed a meniscal tear in the Applicant’s right knee. After a careful review of all the evidence available in the Applicant’s case, the NDRB determined that, even though post-service evidence exists of a medical condition, the Applicant made it clear to military authorities at the time of his service that he was determined to get out of the Marine Corps by any way possible, and made verbal and written statements to that effect. The NDRB determined that the Applicant’s discharge for pattern of misconduct was warranted by his repeated violations of the UCMJ, and that his discharge was proper. Relief denied.


: (Decisional) () . The Applicant contends he was improperly discharged for refusing an unlawful order to train. The Applicant reported to School of Infantry on 1 February 2012. The Applicant complained of knee pain, and was assigned to the Student Administration company, and not to a training company, in order to receive medical treatment. The Applicant’s medical records show that, after initial medical treatment and assignment to limited duty, the Applicant was returned to full duty to participate in entry level training at School of Infantry on 15 February 2012. On 24 February, and again on 2 March 2012, the Applicant refused orders from his chain of command to participate in training, and was found guilty at two separate NJPs for disobedience to orders. After evaluation of the available evidence in the Applicant’s case, the NDRB determined that the orders given to the Applicant were lawful as he was in a full duty status, properly assigned to the School of Infantry for training, and subject to the UCMJ. It was the Applicant’s responsibility under the UCMJ, and by his oath of enlistment, to follow the orders of the officers appointed over him. The NDRB determined that the Applicant’s issue is without merit, and his discharge for a pattern of misconduct was warranted. 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