ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120508
Characterization of Service Received:   
Narrative Reason for Discharge:   DISABILITY, TEMPORARY
Authority for Discharge:   MARCORSEPMAN 8301

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20070720 - 20070729  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070730	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110429	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  39
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (3)   

Periods of UA:  20100624 - 20100802, 39 days	CONF:  20100830 - 20100909, 11 days

NJP:  

- 20090701:	Article  (Failure to obey order or regulation - Failure to obey posted speed limits)
	Awarded:    Suspended:  

- 20091109:	Article  (Failure to obey order or regulation - Driving without valid license)
	Awarded:    Suspended:  

SCM:  

- 20100830:	Article  (Absence without leave, 20100624 - 20100802, 39 days)
	Sentence: 1 month (20100830 - 20100909, 11 days)   

SPCM:  	CC:  

Retention Warning Counseling:  

- 20091109:	For violation of the UCMJ, Article 92, when having knowledge of lawful order given by base regulations, drove on state (Florida) suspension and base suspension and driving without a valid license in possession, which was your duty to obey. 

- 20091109:	For violation of Article 92 of the UCMJ, you are hereby counseled on your non-recommendation for promotion to the rank of Corporal for the period of 20091109 to 20100509.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 to present, paragraph 8301 TEMPORARY DISABILITY RETIRED LIST (TDRL).

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.	The Applicant seeks to use the GI Bill.  
2.	The Applicant contends he maintained the highest standards of the U.S. Marine Corps, was only charged with two minor traffic tickets, and was treated unfairly.
Decision

Date:  20130301		Location: Washington D.C.	 Representation: 

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

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included  6105 counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ): Article  (Failure to obey order or regulation, 2 specifications: Specification 1: Failure to obey posted speed limits and Specification 2: Driving without valid license), and   for  of the UCMJ: Article  (Absence without leave, 39 days).  
On 16 February 2011, the Physical Evaluation Board found the Applicant unfit for service due to his Depressive Disorder and recommended that the Applicant be placed on the Temporary Disability Retirement List (TDRL).  On 30 April 2011, the Applicant was placed on the TDRL and discharged with a General (Under Honorable Conditions) characterization of service.

:  (Nondecisional) The Applicant seeks to use the GI Bill.  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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.

:  (Decisional) ()  .  The Applicant contends he maintained the highest standards of the U.S. Marine Corps, was only charged with two minor traffic tickets, and was treated unfairly.  During the Applicant’s 3 years and 9 months of service, he received two retention warnings and was found guilty of committing serious offenses at two NJPs and a Summary Court-Martial.  Violations of UCMJ Articles 92 (Failure to obey an order or regulation) and 86 (UA greater than 30 days) are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and warrant a punitive discharge (i.e., Bad Conduct or Dishonorable) as the result of a Special or General Court-Martial.  Additionally, with his repetitive misconduct, the Applicant met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct).  If he had been administratively separated for misconduct, the characterization of service would most likely have been Under Other Than Honorable Conditions.  His command, however, allowed him to continue in service, and he was eventually transferred to the Temporary Disability Retirement List.  Finally, a review of his records reveals that the Applicant’s average Proficiency and Conduct marks during his enlistment were 3.6/3.8, respectively, which reflects below-average proficiency and conduct.  In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, minimum acceptable average Proficiency and Conduct markings during an enlistment are 3.0 and 4.0, respectively.  Failure of a Marine to achieve either of these standards is evidence of significant negative aspects, outweighing all but the most meritorious military records.  Marines who do not achieve these standards should not receive an Honorable discharge.  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.  Although the Applicant’s misconduct during his enlistment warranted a Bad Conduct Discharge as the result of a Special Court-Martial, or at the very least, an Under Other Than Honorable Conditions characterization as the result of administrative separation for misconduct, the NDRB is not authorized to change a discharge to a more unfavorable level.  Despite the Applicant’s deployment to Iraq, his record contained repetitive, serious misconduct and below-average Proficiency and Conduct marks that warranted a General characterization.

The documentation submitted by the Applicant to show he warranted an Honorable characterization does not change the propriety or equity of the discharge.  The final determination of a Marine’s discharge characterization is made by the appropriate Separation Authority, which determined in the Applicant’s case to discharge him with a General (Under Honorable Conditions) characterization.  The certificates from the President and Commandant of the Marine Corps were issued as a result of his assignment to the TDRL and do not reflect his official discharge characterization of service.  Additionally, the Warrant Officer who signed the NAVMC 11060 (REV. 7-90) and checked an Honorable discharge did not have the authority to assign the Applicant’s characterization of service.  The NAVMC 11060 is solely for separation/travel pay, and the administrative error made by checking the Honorable discharge box does not change the propriety or equity of the Applicant’s discharge.  Finally, a letter from the Applicant’s Congresswoman referred to a racial incident in November 2010 while the Applicant was still in the Marine Corps, however, the NDRB found nothing in the record that referred to any racial incident, nor did the Applicant mention such an incident in his statements to the NDRB.  After a complete review of the Applicant’s records, his statements, and documentation submitted by him, the NDRB determined his discharge was both proper and equitable.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain Disability, Temporary.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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