ex-, USMC
MD07-00796

Current Discharge and Applicant’s Request

Application Received:  20070517 	Characterization Received:  
Narrative Reason:  DISABILITY, SEVERANCE PAY 	Authority:  MARCORSEPMAN 8401

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Characterization not warranted by overall service record
			2. Medical condition caused misconduct and weight control
			3. Superiors acted unfairly for personal reasons

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  DISABILITY, SEVERANCE PAY.

Date:  20071212		Location:  Washington D.C.	 Representation:  

Discussion

Issue 1 ().  An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The Applicant’s service was marred by a retention warning and a nonjudicial punishment for violation of the Uniform Code of Military Justice, Articles 86.  In addition, there is credible evidence in the Applicant’s record to indicate that she failed to comply with her prescribed medical treatment regime and used her diagnosed condition to avoid required duties.  The Board found that her service was equitably characterized.  

Issue 2 ().  The Applicant’s contention is not supported by the record.  To the contrary, the chronology of events indicates that the command apparently delayed taking disciplinary action against the Applicant until it had sought and received a medical evaluation to rule out the possibility that the Applicant’s condition excused or mitigated her absences.  The Board also determined that the Applicant’s misconduct was not excused or mitigated by her medical condition.

Issue 3 ().  The Board found no support in the record for Applicant’s claims that she was somehow unfairly singled out for adverse or harsh action by her superiors for personal, or any improper, reasons.  To the contrary, the Applicant’s record indicates that her unit went to great lengths to accommodate her medical needs.  The Board found no reason to consider that that the assessment of the Applicant’s character of service was based on anything other than an objective assessment of the quality of her performance and conduct throughout her enlistment. 

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20010226 - 20010912  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20010913			Years Contracted:  ; Extension:  	Date of Discharge:  20050415
Length of Service:  03  Yrs  07  Mths  03  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:   Age at Enlistment:    AFQT: 59  MOS: 5536  Highest Rank: 
Proficiency/Conduct marks (# of occasions):	NOT FOUND IN RECORD	Fitness reports:   
Awards and Decorations (per DD 214):  Rifle , GWOTSM, NDSM, CERTCOM

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

20040329:	MARCORSEPMAN 6105 counseling for assignment to weight control/body fat composition program.  Applicant elected to submit a statement.  [NDRB note:  No statement found in record.]

20040419:	Battalion Surgeon, Headquarters Battalion, 2d Marine Division, advised Applicant’s Commanding Officer that Applicant was diagnosed with fibromyalgia; that Applicant had not been following the treatment plan and had been using her disease to get out of activities that she was well enough to do.  Advised that Applicant fit for full duty, had been fit for full duty since 20031214 and had abused diagnosis of fibromyalgia while on limited duty and since being found fit for full duty.

20040422:	NJP -- Viol UCMJ Art. 86 (3 specs) – Failure to go on 20040312, 20040313 and 20040315.
	Awarded - FOP ($747.00) for (2 months); RIR (E-3); Restr for (60 days), 15 days susp 6 months.

20041005:	Informal PEB preliminary findings:  Unfit, disability rating 10%, to be separated from active duty with severance pay.

20041018:	Applicant counseled on Informal PEB preliminary findings.

20041103:	Applicant demanded formal PEB.

20050121:	PEB reviewed Applicant’s case, determined that she was unfit to perform duties, diagnosed her as Category I: Fibromyalgia, disability rating 10%, and disposed of her case by separation from the naval service with severance pay, but without further disability benefits.

20050216:	Applicant counseled on final PEB findings.

20050415:	Applicant discharged this date.

Types of 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)  Excerpts regarding fibromyalgia syndrom

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 September 2001 and Present), paragraph 8401, DISABILITY DISCHARGE WITH SEVERANCE PAY.

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.

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