ex-, USMC   

Current Discharge and Applicant’s Request

Application Received:  20090409
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20020124 - 20020917  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020918	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20070917	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  68
MOS:  7242
Proficiency/Conduct Marks (# of occasions):   / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     LOA COA

Periods of UA/CONF:  

NJP:  

- 20070316:	Article 86 (UA), 3 specifications
	Spec 1 0600, 20070305
	Spec 2 0600, 20070306
	Spec 3 0600, 20070313
	Awarded:    Suspended:  

- 20070712:	Article 86 (UA), 3 specifications
	Spec 1 20070615
	Spec 2 20070621
	Spec 3 20070622
	Article 92 (Failure to obey order)
	Awarded:    Suspended:  

- 20070831:	Article 86 (UA), 8 specifications
	Spec 1-2 20070718 – 20070827 (41 days)
	Article 92 (Failure to obey order)
	Awarded:     Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20060307:    For recent Company NJP concerning the violation of 3 separate occasions going UA from BCP..

- 20061107:	For unauthorized absence and requirement to be at your appointed place of duty.

- 20070712:	For failure to report to your appointed place of duty on two separate occasions.

- 20070712:	For violations of misconduct absent without authority.

- 20070712:	For many occasions for failing to report, and your excuse is without merit.

- UNDATED:	For recent Battalion NJP for violations  for Art 86 for 8 separate occasions going UA from BCP and Article 92 (2 specifications)  for UA from restriction check-in. 

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
01 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION.

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.  Decisional issue.  Applicant states character of service should be upgraded.  Medical condition prevented him meeting   USMC weight standards.
2.  Decisional issue.  Applicant states disciplinary actions for UA periods were unjust since work hours prevented him from participating in remedial physical fitness training program.
3.  Decisional issue.  Applicant claims he was threaten by his battalion commander and assaulted by a senior staff noncommissioned officer.

Date:  20100114		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COMPLETION OF REQUIRED ACTIVE SERVICE.

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 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 reflects six 6105 counseling warnings and three Non-judicial Punishment (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): on 20070316 for violation of Article 86 (UA), 3 specifications; on  20070712: for violations of Article 86 (UA), 3 specifications and Article 92 (Failure to obey order); and on 20070831 for violations of Article 86 (UA), 8 specifications and  of Article 92 (Failure to obey order).  

Issue 1:  ()  .  The Applicant claims he suffered from a debilitating physical condition which prevented him from performing physical fitness training which resulted in excessive weight gain.  A review of his extensive military health records show that the Applicant had a cyst removed during April 2003, and was treated for unresolved chest pain in June 2005 and March 2006.  Exams and EKG were normal and the Applicant was released to full duty without limitations.  The Applicant was seen for sleep disorders from March 2006 until Feb 2007.  Medical staff opined his sleep issue was due to his frequently changing duty hours and recommended he limit caffeine consumption, try to sleep more hours when he was in bed and change roommates so he could live with Marines on his same work schedule.  He was found medically fit for full duty during a BCP evaluation on 26 February 2007.  Aside from his statement, there is no evidence in the Applicant’s medical record that he had a physical condition which prevented from attending physical training.  Relief denied.  

Issue 2:  ()  .  The Applicant claims his excessive work schedule, of 14 hour days, 7 days a week for the entire year of 2005, prevented him from attending physical fitness training sessions.  He also claims he was NJPed two weeks prior to his discharge for missing a BCP session when he had already been released from the training program.  Review of his service records does not reveal the Applicant was the subject of any counseling entries or disciplinary action during the year 2005.  During the period from March 2006 until July 2007, he received six retention counseling entries for unauthorized absence from appointed place of duty or the BCP program.  Additionally, he was the subject of three NJPs from March through August 2007, for repeated absences from the BCP training program.  The Applicant waived his rights to see counsel prior to his NJPs and he did not appeal the punishment awarded in any of his NJPs.  Additionally, he waived his rights to write rebuttal statements when given his six 6105 counselings.  The Applicant could have used these opportunities to state his objections and concerns for proper and equitable treatment due to his work schedule, but he did not.  Aside from his own statement, the Applicant failed to provide evidence from witnesses to support his claim.  Relief denied.  

:  ()  .  The Applicant claims he was told by his battalion commander he would go to the brig if he refused NJP and that he was physical assaulted by a senior staff noncommissioned officer during a PT session.  He had the opportunity to speak with a military counsel prior to accepting NJP—which also could have served as an opportunity to discuss with a disinterested third party alleged inappropriate actions by his battalion leadership.  The Applicant did not take advantage of this right and refused to speak with counsel.  Aside from his personal statement, the Applicant provides the Board with no documentary evidence such as statements from individuals he names as credible witnesses or medical reports to support his allegations.  In the absence of this supporting material, the Board was unable to determine that relief was warranted. 

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 

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge, Sept 17, 2007.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.]

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 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:  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 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 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, 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 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