ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080819
Characterization of Service Received:  
Narrative Reason for Discharge:  UNSAT PARTICIPATION IN READY RESERVE.
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20010404 - 20011209  	Active:       20011210 – 20020615 HON
									 20030113 – 20030708 HON

Period of Service Under Review:
Date of Enlistment: 20011210	Period of Enlistment:   Years   Months	Date of Discharge:  20061201
Length of Service:    Years    Months  22  Days	 Education Level:  	Age at Enlistment:  
AFQT:  53	MOS:  0311	Highest Rank:      Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	  4.0 (NFIR) / 3.9 (NFIR)
Awards and Decorations (per DD 214):  Rifle  Pistol        

Periods of UA/CONF:      NJP:      SCM:        SPCM:         CC:  

6105 Counseling: 
For unexcused absence from Inactive Duty Training (IDT) on the following dates: 
			20040624-20040627; 20040916-20040919; 20041015-20041017; 20041106; 20050121-20050123; 			20050211-20050213; 20050311-20050313; 20050416-20050417; 20050513-20050515; 20050715-			20050717; 20050813-20050814; 20050909-20050911; 20051013-20051015; 20051105; 20060106-			20060108; 20060210-20060212; 20060310-20060312; 20060406-20060409. 

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe) 

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

Applicant’s Issues

1.  Record of service.
2.  Applicant moved but could not transfer to another SMCR unit. 
3.  Post Traumatic Stress Disorder (PTSD) diagnosis.

Decision

Date:  20090114		Location:  Washington D.C.	 Representation:  

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

Discussion

: ()  .  The Applicant contends he is entitled to a discharge upgrade due to his record of service.  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.  The Applicant’s record of service is marred by more than 90 missed IDT periods and two missed Annual Training periods.  The NDRB determined the Applicant’s failure to participate in at least 18 separate drill weekends and two annual training periods represented a serious departure from the conduct expected of members of the Selected Marine Corps Reserve (SMCR). Because the Applicant was not on active duty he was not in violation of the Uniform Code of Military Justice, but his refusal to participate over a prolonged period clearly represents unacceptable conduct.  For the edification of the Applicant, an “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  The NDRB determined the awarded discharge characterization best represents the Applicant’s record of service.  An upgrade based on record of service would be inappropriate.

: ()  .  The Applicant contends he is entitled to a discharge upgrade because he attempted to transfer to another SMCR unit following relocation out of the geographical area on his previous unit.  In accordance with the Marine Corps Reserve Administration Management Manual (MCO P1001R.1J), a Marine is authorized to transfer to a SMCR unit within reasonable commuting distance from his new permanent residence following a move.  However, only upon full resolution of all missed IDTs will the Marine be authorized to transfer.  Reservists who do not schedule Equivalent Duty Periods will be retained by the original unit and processed as an unsatisfactory participant.  The record indicates the Applicant requested transfer following accrual of missed IDTs which were never resolved.  The Applicant’s unit adhered to regulations in processing the Applicant for separation, thus the basis for discharge, “Unsatisfactory Participation”, is proper.  The NDRB determined a discharge upgrade based upon the Applicant’s attempt to transfer to a new unit would be inappropriate.

: ()  .  The Applicant contends he is entitled to a discharge upgrade due to his diagnosis with PTSD.  In support of his contention, the Applicant provided evidence of diagnosis with PTSD by competent medical authorities and receipt of disability pay from the Veteran’s Administration for PTSD.  The NDRB noted the Applicant was properly screened for PTSD following return from deployment in Iraq and received no PTSD treatment at the end of his deployment or in the year following while serving as a drilling reservist.  Therefore, the NDRB determined the Applicant’s unit did not act improperly in processing him for administrative separation for unsatisfactory participation as a result of PTSD.  However, the NDRB determined the “Under Other Than Honorable Conditions” characterization of service was not equitable based on the post-service diagnosis of PTSD and determined the appropriate characterization of service should be “General (Under Honorable Conditions)”.  The NDRB notes the record of evidence does not indicate the Applicant was ever shown to be not responsible for his actions, including failure to participate or to resolve his missed IDTs.  Therefore, the NDRB determined an upgrade to “Honorable” would be inappropriate based on the available evidence. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

Pertinent Regulation/Law

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.

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 or is referred to a court-martial 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 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 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 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 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