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

 ex-LCpl, USMC
Docket No. MD00-00887

Applicant’s Request

The application for discharge review, received 000706, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I CONTEND THAT I SHOULD HAVE RECEIVED AN HONORABLE DISCHARGE FROM THE USMC.  MY GENERAL DISCHARGE (UNDER HONORABLE CONDITIONS) WAS UNFAIR BECAUSE I WAS SCHEDULED TO BE MEDICALLY DISCHARGED FROM THE USMC AFTER A MEDICAL EVALUATION BOARD CONDUCTED IN JUNE 1997.  THE MEDICAL EVALUATION BOARD RECOMMENDED ME FOR DISCHARGED BASED UPON MY CHRONIC BACK PROBLEM.  THEY, THE CHAIN OF COMMAND, THOUGHT I WAS MALINGERER.

2.  I CONTEND THAT ALL OF MY "PAGE 11'S", WITH THE EXCEPTION OF THE REMARK DATED 970429, DEALING WITH A WORTHLESS CHECK AND ALLOWING A MINOR TO DRINK, WERE INITIATED BECAUSE OF MY PERCEIVED MALINGERING.

3.  I REALIZE THAT GOING AWOL WAS NOT A CORRECT SOLUTION TO MY PROBLEM BUT I FEEL THAT I HAD A COMPELLING REASON TO GO AWOL.  I WAS SCHEDULED TO BE DISCHARGED BECAUSE OF MEDICAL UNFITNESS AS RECOMMENDED BY THE MEDICAL EVALUATION BOARD.  I CONTEND THAT MY CHAIN OF COMMAND DID NOT BELIEVE THE MEDICAL EVALUATION BOARD AND THEY WERE NOT GOING TO DISCHARGE ME WITH A MEDICAL DISCHARGE.  I FELT THAT I HAD NO OTHER RECOURSE BUT TO GO AWOL TO AVOID FURTHER INJURY TO MY BACK.

4.  THE EVIDENCE I AM PRESENTING IS THE DVAROLA LETTER GRANTING ME 0% SERVICE-CONNECTED DISABILITY FOR MY LOWER BACK (LUMBAR STRAIN) AND THE DVAROLA LETTER GRANTING ME AN INCREASE TO 10% SERVICE CONNECTED DISABILITY FOR THE SAME CONDITION.  MY BACK HAD BEEN A PROBLEM ALL THAT TIME AND YOU CAN SEE THAT MY BACK WOULD HAVE DETERIORATED EVEN MORE HAD I BEEN FORCED TO STAY IN THE USMC.  THIS IS EVIDENCED BY THE RATING DECISION THAT THE DVAROLA ISSUED ON OCT 25, 1999 AWARDING ME AN INCREASE OF COMPENSATION FOR MY BACK PROBLEMS.  IF THE DAILY ACTIVITIES OF CIVILIAN LIFE LEAD TO AN INCREASE IN MY COMPENSATION FOR LOWER BACK PROBLEMS THAT DO YOU THINK THAT HE DAILY ACTIVITIES OF A MARINE WITH A PRIMARY SPECIALTY OF 0311-RIFLEMAN WOULD DO TO MY BACK?

5.  I WAS WRONGLY HARRASSED OUT OF THE USMC BECAUSE MY CHAIN OF COMMAND BELIEVED THAT I WAS A MALINGERER.  I WAS NOT APPROPRIATELY DISCHARGED WITH A MEDICAL DISCHARGE WHICH WAS RECOMMENDED BY A MEDICAL EVALUATION BOARD.  HAD I BEEN BELIEVED BY MY CHAIN OF COMMAND THAT I HAD A LEGITIMATE BACK PROBLEM AND BEEN DISCHARGED APPROPRIATELY I WOULD HAVE RECEIVED AN HONORABLE DISCHARGE.

I REQUEST THAT MY DISCHARGE BE UPGRADED TO HONORABLE BASED ON THE ABOVE STATEMENT.   THANK YOU FOR YOUR CONSIDERATION.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
DVA ltr dtd Oct 25, 1999 to Applicant increasing his disability to 10%
DVA ltr dtd May 21, 1999, to Applicant, rating his disability as 0%

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		950329 - 950403	COG

Period of Service Under Review:

Date of Enlistment:  950404		Date of Discharge:  971117

Length of Service (years, months, days):

	Active:  02  07  14 (Doesn't exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (6)			Conduct:  4.2 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM 

Days of Unauthorized Absence:  32 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority:  MARCORSEPMAN Par. 6203.2. (Absentia)

Chronological Listing of Significant Service Events:

960202:	Battalion Aid Station, Camp Pendleton:  20 year old male with complaint of back pain for 6 months.  Pt states that this morning while doing pushup pain become more intense and he flet a shooting pan up his spine.  Pt states no memory of trauma to back in past history.
	Assessment:  L1/L2 spondylolisthesis.
	Plan:  1 - No duty tonight, 2 - light duty to 21 Feb 96, 3 - Motrin, 4 - Robaxin, 5 - pt to physical therapy, 6- increase fluids, 7 - return if worsens.

960202:	Radiology Exam Report:  Impression:  Normal lumbosacral spine.

960205:	Physical Therapy Dept, NavHosp Camp Pendleton:  Pt with acute onset left lower back pain 3 days ago while doing pushups.  Pain constant, non-radiating.  Symptoms improving.

970114:	Emergency Room, NavHosp Camp Pendleton:  Fell off an embankment 8' - 10' high.  Wearing head gear during fall.  Denies any discomforts at present time of fall.  Low back pain non-radiating.

970114:	Radiology Exam Report:  Findings:  No evidence of fracture, subluxation, or other significant bony abnormality is demonstrated.  The bony alignment and soft tissue margins appear unremarkable.  If clinically indicated, however, a follow-up study my be suggested.

970123:	Applicant acknowledged eligibility but not recommended for promotion to CPL for February because of a lack of maturity.

970306:	Counseled for deficiencies in performance and conduct (lack of maturity, personal appearance (hygiene) and lack of military bearing).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970325:	Medical Consultation:  21 year old male came into Sick Call with chief compliant of back pain.  Back pain stated 2 days ago when waking in morning while getting out of bed.  History - last March Pt diagnosis - l1/l2 Spondylolisthesis.  Jan 14, 97, Pt went to emergency room for falling off an embarkment 8' - 10' high - diagnosis - Left lower back strain.  Pt feels pain = 6/10 right now.
	Assessment:  MLPB
	Plan:  1 - Back school on Wednesday, 2 - Motrin, 3 - Return to clinic if symptoms persist r worsen, 4 - limited duty for 4 days.

970331:	Applicant acknowledged eligibility but not recommended for promotion to CPL for April because of lack of maturity and lack of military bearing.

970422:	Medical Eval:  Follow-up on concussion.  Post-concussion from assault and question amnesia or deliberate withholding of facts due Pts SF600 previous sheet.  Today feels fine.  Denies sluggishness, headaches, sensory changes, bowel/bladder difficulties or weakness.
	Assessment:  Post-concussion syndrome - 18 Apr 97.  Asymptomatic today as before.
	Plan:  1 - No ASA, no Motrin, 2- No strenuous exercise, heavy lifting or contact sports for 72 hours, 3 - Return if any problems noted, 4 - Emergency treatment record pending.  
	
970423:	Medical Eval:  21 year old male in with chronic lower back pain.  Pt has been send and treated for lower back pain since Jan 97 after Pt fell from an 8 ft embankment.  Pt has seen chiropractor and back school at physical therapy.  Pt states he has back pain approximately 75% of time.  Pt states back was feeling ….. approximately 2 weeks ago till he lifted weights and then back pain came back.
	Assessment:  Mechanical lower back pain.
	Plan:  1 - LS series, 2 - CBC, VA, 3 - Pt needs to clean himself better, better hygiene, 4 - continue physical therapy, 5 - follow-up in 4 weeks, 6 - lifting except lifting heavy things.  Refer to Sports Medicine and Reconditioning Therapy (S.M.A.R.T.) Center.

970429:	Counseled for deficiencies in performance and conduct (failure to comply with the UCMJ, frequent involvement with military by falsely offering worthless check to MWR and allowed a Marine who under 21 years of age to drink in his home).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970501:	Applicant acknowledged eligibility but not recommended for promotion to CPL due to military bearing and personal hygiene.

970514:	SMART Center:  Diagnosis:  Symptoms c/w sciatica.  Plan:  physical therapy for 1 week, re-evaluate in 1 week (bring Xrays).

970601:	Applicant acknowledged eligibility but not recommended for promotion to CPL for June due to substandard performance.

970604:	SMART Center:  Diagnosis:  Mechanical Lower Back Pain.  Plan:  Pt will attend SMART W-W-F from June 6, 9, 11, 13, 16 for treatment.  Follow-up 18 Jun 97.

970701:	Applicant acknowledged eligibility but not recommended for promotion to CPL for July due to substandard performance.

970703:	Unauthorized absence since 0630.

970708:	Surrendered at 0630.

970708:	Medical Eval:  22 years old active duty male was referred by work center supervisor for erratic behavior and questionable homicidal ideations.  Pt escorted by his SSGT.  Pt is taking no medications (prescribed or illegal) by history at this time.  Pt confirms ETOH use since age 18 which has increased since on active duty.  States he stopped 2 days ago after binging last weekend until he vomited.  Past drug history.  Pt states used marijuana for 2 years prior to entry into USMC, no use now.  Denies any current medical problems other than "on and off" lower back pain since Feb 96.  History:  Born in Oklahoma, raided in Ohio by number of foster homes and eventually adopted.  ……Claims 3.0 GPA in high school.  Ended 1.5 month relationship with civilian girlfriend week ago.  Affiliates with group of civilians that are methamphetamine users by pt's history and have gang affiliations by pt history.  Ask if Pt had any intentions/plan to harm/kill himself which Pt denies emphatically.  Pt then asked if he had plan/intentions to harm/kill another person.  Pt states he is being pursued by 2 groups of people one of which has threatened him and parents.  Pt states he plans to confront these people, tell them to "back off" or he'll "hurt them or kill them if he has to protect his family".
	Assessment:  Anger secondary to stress.
	Plan:  Pt contract for safety of self and others.  Pt to be referred to MHU for further eval.  Return if assistance is necessary.  Reassured Pt.  Discussed care plan.

970708:	NJP for violation of UCMJ, Article 86:  unauthorized absence from 0630, 970703 to 0630, 970708.
Awarded forfeiture of $244.00 per month for 1 month, restriction and 
extra duties for 14 days.  Not appealed.

970715:	Medical Officer's addendum:  LCpl (Applicant) has had chronic MLBP for several months despite attempts at rehab, which have included referral to back school twice and physical treatment.  As he unable to perform the duties required of him as a Marine, I recommend administrative discharge.  I will place him on an abbreviated limited duty board.  I have discussed this with his command.  Formal letter to the CO to follow.  Discussed with LCpl (Applicant).  

970715:	Medical Board, NAVHOSP Camp Pendleton:  Placed applicant on limited duty for 6 months.  

970728:	Unauthorized absence since 0700.

970801:	Applicant acknowledged eligibility but not recommended for promotion to CPL for July, August and September due to substandard performance.

970801:	Applicant acknowledged eligibility but not recommended for promotion to CPL for October, November, and December due to substandard performance.

970811:	Apprehended at 1700 by Sgt L_ at Camp Magarita and turned over to OOD.

970818:	NJP for violation of UCMJ, Article 86:  did on or about 0700, 970728, absence himself from appointed place of duty.  
	Award:  Forfeiture of $258 per month for 1 month (suspended for 6 months), restriction and extra duty for 14 days, reduction to E-X.  Not appealed.

970904:	Counseled for deficiencies in performance and conduct (inability to participate in any training due to your lower back problem (has not trained with company for over 6 months)).  Necessary corrective actions explained, sources of assistance provided.  Applicant elected not to make a statement.

971014:	Unauthorized absence since 0700.

971027:	Surrendered at 2145.

971028:	Unauthorized absence since 2000.

971114:	Brought back administratively at 0700.

971117:	Applicant discharged in absentia with a General (Under Honorable Conditions) by reason of condition not a physical or mental disability.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971117 with a general (under honorable conditions) by reason of convenience of the government due to condition not a physical or mental disability (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicant’s issue 1, the Board found that the applicant was being treated for back problems, and at no time did the medical officers recommend the applicant be discharged for a disability.  The command found that the applicant’s physical condition interfered with the effective performance of duty, and therefore recommended discharge for condition, not a physical disability.  No relief will be granted based on this issue. 

The applicant states in issue 2 that “all of my "page 11's", with the exception of the remark dated 970429, dealing with a worthless check and allowing a minor to drink, were initiated because of my perceived malingering.”  The Board found the applicant had 10 counselings during his 2 years and 7 months in the Navy, which the Board does consider to be significant, coupled with the applicant’s misconduct.  No relief will be granted based on this issue. 

In response to the applicant’s issues 3 and 5, the Board found that although the applicant may have felt going UA for greater than 30 days was his only solution, the Board does not agree and considers his misconduct significant.  The applicant had to be discharged from the USMC in absentia.  It doesn’t appear to the Board that the applicant used any other avenues that may have been available to rectify his problems, as opposed to aggravating them by going UA.  No relief will be granted based on this issue. 

In the applicant’s issue 4, the Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility.  This is not an issue for which the Board will grant relief.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95), paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023