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)      20120314 - 20120903     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20120904    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20130524     Highest Rank:
Length of Service: Year(s) Month(s) 21 Day(s)
Education Level:        AFQT: 35
MOS: None
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

- 20130328:      Article ; 2 specifications
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

- 20120325:      For violation of Article 91 by refusal to train

- 20120326:      For violation of Article 91 by refusal to train

- 20120328:      For Bn NJP for violations of Article 91 by refusal to train and administrative separation processing





Administrative Corrections to the Applicant’s DD 214

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

Types of Witnesses Who Testified

         Expert:           Character:      

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 the Marine Corps standard of care for Patellofemoral Syndrome (PFS) was insufficient.
2.       The Applicant contends the counseling statements in his record dated on 25 March 2013, 26 March 2013, and 28 March 2013 are erroneous.
3.       The Applicant contends his discharge from the Marine Corps is unjust.

Decision


Date: 20150520           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 towards warrant, noncommissioned, or petty officer; 2 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 an administrative board.

: (Decisional) () . The Applicant contends the Marine Corps standard of care for Patellofemoral Syndrome (PFS) was insufficient. The Applicant argues that Navy medical authorities delayed a medical diagnosis for PFS, and then did not give him sufficient time in treatment and recovery before assigning him back to full duty for training. The Applicant’s record shows that he developed knee pain in Marine Corps boot camp from 4 September until 30 November 2012, and was diagnosed with PFS at boot camp. The Applicant was treated with a few days of light duty and therapy. After boot camp, the Applicant was on annual leave through December 2012 until he reported to School of Infantry (SOI) on 2 January 2013. The Applicant reported to medical on 3 January 2013 and complained of knee pain. He was prescribed Naproxen, given light duty and physical therapy, and ordered into rehabilitation. The Applicant did not begin regular training with his unit. On 7 March 2013, the Applicant was evaluated by clinical psychiatrist and expressed no desire to discontinue training. The psychiatrist determined the Applicant was mentally fit for full duty. During a follow-up medical evaluation on 14 March 2013, the Applicant continued to complain of PFS and asked to be sent home. On 25 March 2013, the Applicant was returned to full duty for training; however, he refused an order by his Platoon Sergeant on 25 March, and an order by his First Sergeant on 26 March. The Applicant was counseled but continued to refuse to train, and was given NJP on 28 March for two specifications of violations of Article 91. On 4 April 2013, the Applicant made a written statement to the Commanding General stating that: “I do not wish to be in the Marine Corps anymore because I have no motivation.” The Applicant was notified of processing for administrative separation on 8 April 2013, and waived his rights; thus accepting administrative separation with Under Other Than Honorable Conditions discharge. The NDRB determined there is insufficient evidence to show that medical authorities erred in their assessment that the Applicant was fit for full duty, and that the Applicant had a legal responsibility under the UCMJ to follow orders that he violated by insubordinate conduct towards his noncommissioned officers. Therefore, the NDRB determined the Applicant’s discharge is proper and equitable as issued. Relief denied.



: (Decisional) () . The Applicant contends the counseling statements in his record dated on 25 March 2013, 26 March 2013, and 28 March 2013 are erroneous. The Applicant argues that since he did not agree with his doctor’s assessment that he was fit for full duty, he was erroneously counseled on March 25, 2013, and March 26, 2013, on violations of Article 91 for refusing to train. The Applicant argues that his counseling on 28 March was erroneous because it was based on the two previous counseling with no additional misbehaviors. Under the UCMJ, service members are required to follow all lawful orders without insubordinate conduct towards their leadership. Since medical authorities had determined the Applicant was fit for full duty, he was lawfully ordered to begin training by the noncommissioned officers in his chain of command. Therefore, the Applicant had a legal responsibility that he violated by insubordinate conduct. The Applicant was given the opportunity to correct his behavior through official counseling entries in his record, but he refused. At Battalion NJP on 28 March, the Applicant was found guilty of two specifications of insubordinate conduct, and he was officially counseled again for the NJP, and for processing for administrative separation. The NDRB determined the Applicant’s counseling entries in his record are administratively correct, and not erroneous, as the Applicant states in his issue. The Applicant’s counseling entries on 25, and 26 March, and his NJP on 28 March are the basis for his administrative separation for Misconduct. Relief denied.

: (Decisional) () . The Applicant contends his discharge from the Marine Corps is unjust. The Applicant argues that he received a service-connected injury, and because of the failures of Navy medical personnel, and his leadership’s failures, he was unjustly discharged with Under Other Than Honorable Conditions discharge. As the NDRB found in the Applicant’s first two issues that his discharge was proper and equitable, the NDRB does not find that the Applicant’s third issue has merit. 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 sufficient evidence, to support the contention that his discharge is unjust. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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