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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD05-01032

Applicant’s Request

The application for discharge review was received on 20050601.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051206.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“I was erroneously discharged by the Marine Corps on 12/27/03.  Arrest warrants were issued under my name but nothing ever happened.  Per the separation manual, MCO 6210, I am not to be discharged unless I am arrested or convicted by civilian authorities and neither ever happened.

I was discharged while I was still on limited duty because of right knee surgery that was done two weeks prior and I was still discharged.

I was never given a physical or spoke to a counsel prior to discharge.  On my DD214 says that I was provided dental care and I wasn’t.

Appropriate actions or procedures were never followed during my discharge, and it was also undeserving.

According to the Marine Corps Separation Manual, a Marine must be arrested and/or convicted of a crime by civilian authorities in order to be separated/discharged by the Marine Corps.  Like I mentioned before, I was discharged before I even turned myself in.

I was discharged on December 27, 2003 but I had a few days on my leave balance and I went home on December 17, 2003 (leave papers are included as a supporting document).

There were a couple of things done that should have never been done.  First, I had knee surgery on December 2, 2003 and was sent home on convalescent leave for about ten days and was put on limited duty until February 1, 2004 (copy of medical paperwork included as supporting document).  According to the Marine Corps Separation Manual, you are not to be separated from the U.S. Marine Corps if you are in a limited duty status and are to be put on medical hold until medically cleared to be separated, this is mandatory, and that did not happen.  I was still on convalescent leave, sitting at home walking around on crutches when all this took place.  There is another section where it says that you are to be given a physical prior to separation, which also mandatory, and obviously this did not happen.  This was mistake number one.

The other problem was being discharged.  Arrest warrants were issued out for my arrest because I was a suspect and nothing more.  When I turned myself in I was sent home the same day and told that I would receive a letter in the mail giving me a court date.  When I went to court I was told to get to the Pre Trial Intervention program and upon completion all charges would be dropped and the arrest would be taken out of my record, because even though I was sent home the same day I turned myself in, it counted as an arrest because they had to take my fingerprints and do some paperwork, book me in other words.  And that’s exactly what happened (copy of court order dismissing charges included as supporting documents).

We all agree that this was an obvious mistake that should have never taken place.  To this day, I should have been still in the U.S. Marine Corps as the meritorious sergeant that I was and still am.  That’s another thing, my service record was impeccable, I had no NJP’s (Non-Judicial Punishments) and no negative page 11 entries.  All the page 11 entries I had were because I participated on a promotion board and either lost or won it.  I was meritoriously promoted to corporal and sergeant within a year, probably would have been a Staff Sergeant right about now but here I am sitting at home, going to the gym on base every day and thinking about what happened to me every time I see another Marine.

This has not only obviously ruined my career, but also my personal life. I had to file for bankruptcy because of debts I incurred while I was in, and what happened was totally unexpected so I had no choice.  To this day I find it hard to keep a job because I can’t get this out of my head.  I joined the Marine Corps straight out of high school, is pretty much all I ever learned to do.  All I know is how to be a Marine and that’s all I want to do.

What I want to happen is the following:

-Receive back pay for the time lost at the rate of an E-5 which was my rank when this all happened.

-Be allowed to re enter the U.S. Marine Corps and finish out my contract which ends on October 10, 2006, as the Meritorious Sergeant that I am and be honorably discharged as I deserve, if I choose to get out after that contract is up.

-At the minimum, have all my records corrected to what they should read.  On my DD 214, change the grade and rank to Sergeant/E-5, change my discharge to honorable, and change my separation and reentry codes to what they should be (copy included as supporting document)

-Receive disability benefits for my left knee which has never healed due to the fact that I was never able to go through rehabilitation due to being separated.

Respectfully,
[signed] J_ B. A_ (Applicant)”   

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Medical Documents (4pgs)
Leave Request
Applicant’s DD Form 214
Court Order for the Destruction of Arrest Record dtd April 14, 2005
Letter from Applicant dtd June 22, 2005
Applicant’s DD Form 214
USMC Fitness Reports (14pgs) 

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USMCR (DEP)	19980508 – 19981019		COG
	Active:   USMC 		19981020 – 20021010		HON

Period of Service Under Review:

Date of Enlistment:  20021011		Date of Discharge:  20031227

Length of Service (years, months, days):

Active:    01  02  16 
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  22

Years Contracted:  4 

Education Level:  12				AFQT:  56

Highest Rank:  Sgt				MOS:  0121

Final Enlisted Performance Evaluation Averages (number of marks): Fitness reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge, Navy and Marine Corps Achievement Medal, Navy Unit Commendation, Marine Corps Good Conduct Medal, National Defense Medal, (5) Certificate of Commendation, Certificate of Appreciation, Letter of Appreciation.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

021011:	Reenlisted this date for a term of 4 years.

030401:	Report of Medical Examination: Applicant qualified for service.

031103:	Physical Profile Report: Applicant placed on temporary limited duty to expire 5 Jan 04.

031112:	State of South Carolina, City of Beaufort, issued arrest warrants (H-504079, H-504080, and H-504081) for the Applicant.

031113:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.  The factual basis: On June 6, 2003 at Lafayette St. Beaufort SC, Sgt J_ B. A_ (Applicant) did willfully and maliciously set fire to his personal motor vehicle, (2000 Ford) valued at 14, 642.00 with intent to destroy such property.  In addition he communicated false report to the Beaufort City Police Department.  On June 20, 2003 J_ B. A_ (Applicant) did falsely make and counterfeit an insurance claim with USAA Insurance Company, with knowledge that the writing was false and counterfeit with intent to defraud USAA Insurance Company. 

UNDATED:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
[Note: Acknowledgement did not contain signature page.]

031202:	Medical Record: Applicant underwent outpatient surgery on left knee.  Applicant placed on convalescence leave.  Applicant instructed to remove dressing on 6 Dec 03; leisurely rest for 2-3 days; gradually increase daily life activities; and return to Ortho Clinic for follow up appointment on 10 Dec 03 at 0805.

031202:	Physical Profile Serial Report: Applicant placed on temporary limited duty to expire 1 Feb 04.

031207:	GCMCA, Commanding General, Headquarters, 4th Marine Division, New Orleans, LA, informed the Commandant of the Marine Corps (MMSB-20) that the Applicant was directed discharged with an under other than honorable conditions by reason of misconduct due to commission of a serious offense.

031215:	Convalescence leave expired.

031227:	DD214: Applicant discharged with under other than honorable conditions by reason of misconduct due to commission of a serious offense.

040201:	Physical profile expired.

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031227 by reason of misconduct due to the commission of a serious offense (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that his discharge was improper because, while arrest warrants were issued, he was not arrested or convicted.  Therefore, he requests a service characterization upgrade to Honorable and an appropriate change in the Narrative Reason for Separation.  On 20031112, the State of South Carolina, City of Beaufort, issued arrest warrants (H-504079, H-504080, and H-504081) for the Applicant.  According to the Applicant’s statement, he surrendered to authorities.  Though not apprehended by authorities, this still constitutes an arrest.  In submitted court records, the charges (Arson, Forgery, Defraud Insurance Company) were dismissed on 20050405 by the solicitor because the Applicant successfully completed the Pre-Trial Intervention Program.  Regulations state that a member may not be separated on the basis of conduct that has been subject to civilian judicial proceedings resulting in an acquittal or action having the effect of an acquittal except when such action, having the effect of an acquittal, is based on a judicial determination not based on the issue of factual guilt of the respondent.  In this case, the successful completion of the Pre-Trial Intervention Program, which resulted in dismissal of charge, did not prove that the Applicant was not guilty of the charge.  As such the Pre-Trial Intervention Program is not tantamount to an acquittal.  Relief on this basis is denied.

The Applicant requests that his pay grade be restored to E-5.  For the Applicant’s information, if a Marine serving in pay grade E-4 or above is administratively separated under other than honorable conditions, the Marine will be administratively reduced to pay grade E-3 effective upon discharge in accordance with paragraph 6311.8 of MCO P1900.16E (Marine Corps Separation and Retirement Manual).  Therefore, until the Applicant’s characterization of service is upgraded, his pay grade will remain E-3.  Relief denied.

The Applicant further contends that his discharge was improper because he was discharged while on limited duty and was not given a final physical.  The record shows that the Applicant was notified on intent to separate on 20031113.  Subsequently, the Applicant underwent surgery on his left knee on 20031202, which revealed left knee patella tendonitis.  The Applicant was instructed to advance to full bearing on knee as tolerated; remove dressing on 20031206; and return for a follow up appointment on 20031210.  The records do not indicate any further requirement for continued treatment or therapy.  The Applicant was placed on a physical profile until 20040201.  The physical profile does not bar the Marine Corps from proceeding with administrative separation as notified on 20031113.  Therefore, the Board concluded that the discharge was proper.  Relief on this basis is denied.

Regarding a final physical, the last physical evaluation on record was conducted on 20030401.  The Applicant was notified on intent to discharge on 20031113 and discharged on 20031227.  Normally, if an examination was conducted within a year of separation a short form physical is conducted.  This document was not contained in the Applicant’s records.  In the absence of a completed short form physical, the Board presumed the Applicant properly was found physically qualified for separation.   If the Applicant feels his discharge was administratively flawed, he bears the burden of providing substantial and credible evidence to the Board.  The Board noted that the Applicant did not provide any documentation to support this claim.  Relief on this basis is denied.

The Applicant expresses a desire to reenter the Marine Corps.  Failing that, the Applicant requests an upgrade in order to receive VA benefits and improve his employment opportunities.  The Board recognizes the Applicant’s motivation to become a Marine again, yet it is worth reminding the Applicant that the factual basis for discharge was misconduct due to commission of a serious offense.  Notwithstanding, the Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces; therefore, the Board is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Also, the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the basis of obtaining Veterans' benefits or enhancing employment opportunities.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 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 V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the 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