ex-, USMC
MD07-00043

Current Discharge and Applicant’s Request

Application Received:  20061003	
Characterization of Service: 
Narrative Reason:    
Authority:  MARCORSEPMAN 6213

Applicant’s Request:  Characterization change to:  	Narrative Reason change to:  
	
Applicant’s Issues (as summarized by NDRB):
1.  Desire to re-enlist
2.  Harassed by unit members
3.  Post-service conduct 

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Date of Decision:	20070823     			Location of Board:  Washington D.C. 

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Issue(s) 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2 ().  The Applicant offers no specifics regarding what behavior or actions on the part of anyone in his unit he believes constituted “harassment.”  There is evidence in the record supporting the conclusion that the Applicant had sufficient unexcused absences from drill requirements to qualify for administrative separation, and the Board presumed that the proper discharge process was followed and that appropriate authorities based their recommendations and decisions on proper criteria.  The Applicant’s unsubstantiated allegation that he was the object of “continous (sic) harassment and ill manner treatment,” “single (sic) out and demoralized by the majority of the company,” and “treated continuously (sic) different” does not overcome the presumption of regularity attaching to the conduct of government affairs, nor are they sufficient to justify, excuse or mitigate his acknowledged absences from drill.  

Issue 3 ().  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service

Prior Service:  NONE
Period of Service Under Review:
Date of Enlistment:  19981217	Years Contracted:   (6 SMCR, 2 IRR)	Date of Discharge:  20051006
Length of Service:  06  Yrs  09  Mths  20  Dys 
Education Level:  	Age at Enlistment:  	AFQT:  65	MOS:  0311	Highest Rank:  
Proficiency/Conduct marks (# of occasions):	NOT FOUND IN RECORD
Awards and Decorations (as listed on the DD Form 214):  MARKSMAN RIFLE BADGE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19990120:	Applicant acknowledged requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

19990217:	Applicant reported for initial tour of active duty for training.

19990903:	Applicant released from initial tour of active duty for training with characterization of service as Honorable.  

20010310:	MARCORSEPMAN para 6105 counseling for being late for morning formation.  

20030111:	MARCORSEPMAN para 6105 counseling for failure to attend drill on dates 20021213 - 20021215: Unsatisfactory mandatory drill participation.
 
20030518:	MARCORSEPMAN para 6105 counseling for failure to meet body composition standards and assignment to body composition program for six months.

20031108:	Counseling for failure to attend drill 20031108.  Not available for signature.

20040208:	Counseling for failure to attend drill 20040206 – 20040208. Not available for signature.

20040404:	Counseling for failure to attend drill 20040402 – 20040404.  Not available for signature.

20040509:	Counseling for failure to meet proficiency standards of marksmanship with rifle.  Not available for signature.

20040808:	Counseling for failure to attend drill 20040807 - 20040808.  Not available for signature.

20041213:	Counseling for unsatisfactory mandatory drill participation.  Not available for signature.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					NOT FOUND IN RECORD
	Basis for Discharge:			
	Least Favorable Characterization:	
	CO’s Intended Recommendation:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel				
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
SJA review (date):				NOT FOUND IN RECORD
Separation Authority (date):	CG, FOURTH MARINE DIVISION, NEW ORLEANS, LA (20051006)
	Basis for discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20051006

Additional Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)       
 
Pertinent Regulation/Law

A.  Paragraph 6213, Unsatisfactory Participation in the Ready Reserve, and Table 6‑1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 2001 until Present.

B.  Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C.  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 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 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  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