Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD02-00297

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

 ex-LCpl, USMC
Docket No. MD02-00297

Applicant’s Request

The application for discharge review, received 020123, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review or a personal appearance hearing before a traveling panel closest to Miami, FL.  The applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Board does not travel, all hearings are held in Washington, D.C. and also that the Board first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829.  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: UNDER HONORABLE CONDITIONS (GENERAL)/Physical disability, existing prior to entry (determined by a Physical Evaluation Board (PEB)), authority: MARCORSEPMAN Par. 8404.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I was given a General discharge because I was injured.  I received no compensation at the time of separation.  I am now service connected and have 3 service connected disability with a rating of 20%.  I wish to get my discharge changed to Honorable, do to the facts of my service connected disabilities.

2.  I had two write ups, in my record.  Look at them carefully.  I was late twice for formation do to over sleeping.  At the time I was on heavy narcotics provided to me by my commands medical unit for my knee (left).  During this time period I had medication such as Percocet, Vixatin, Motrin - 400 mg, Ansaid, Naprosyn.  I was demoted to PFC on one of these times.  It was unjust.  My command at Quantico did not know nor cared I was hurt in such away.  They thought my knee was a cop out.  I am a Marine & will always be a Marine!  I love this country & my beloved Marine Corps to death.

3.  Prior to enlistment I had won Meritorious Dress Blues (never receive).  I also recruited 3 more marines and I was awarded E-2 rank.  I was discharged Dec 18, 1990, very regrettable I left as an E-3.  I got it back but did not receive my Honorable Discharge.  I also did not receive my Good Conduct Medal and if there is any one more deserving it would be me.  I request my Honorable Discharge, my record to be cleared of the two write ups and what I deserve, my Good Conduct Medal.  It's the least the Marine Corps could do for me today, I earned them.

Submitted by DAV:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the applicant, in his request that he be given the opportunity to have his discharge up graded from General Under Honorable Conditions to a Honorable Discharge.

(FSM) joined the United States Marine Corps on September 19, 1988 until December 18, 1990, his service to his country was approximately a period of well over 27 months.  The (FSM) served with distinction and received a Good Conduct Medal Award, which he noted he never, received physically (it is noted on his DD-214 Form).  The (FSM) only violations during his term of service were two (2) unfortunate incidents that he subsequently received were NJP Articles for which he was duly fined, given restriction and subsequently reduced in rank to E-2, he later was again promoted back to E-3 before his medical separation.  The (FSM) contention was that he was on medications that prevented him from awaking in a timely manner to attend formation, this could be a fact of contention, since all the narcotic medications he received and was taking during this period were described by a military Doctor and they all have side effects of that nature of drowsiness or the in-ability to awake in a timely manner.  Our Issues are and we will continue to argue that the (FSM) was subjected to an un-equitable form of punishment (double jeopardy) and this punishment was well above the standards set forth in the provisions in the UCMJ.  These violations were the only negative incidents in his service record.

The (FSM) during his (27) months of enlistment service completed Boot Camp and other physical demanding activities required of all marines recruits and passed them with flying colors.  There is no medical evidence or medical explanation or reason to not to believe that the (FSM) medical disability did not occur or was not otherwise aggravated by length of service.  If the (FSM) knee problem (disability) was at such a severe level that subsequently required a medical evaluation board, after (27) months of military service he should be entitled to an Honorable Discharge?

The (FSM) feels that the Discharge he received (General Under Honorable Conditions) was so severe it mars and annihilates all of his Outstanding Service recommendations, he received while recruiting other marines and serving as a role model and outstanding marine during his entire term of creditable military service.  The (FSM) now respectfully seeks that an equitable standard be applied in reviewing his request for a Military Discharge Review.

We contend that the Medical Evaluation Board's action taken by his command was so severe and over and above the normal medical evaluation standards set forth in Title 10 USC and other refractory provisions, standards, policies and regulations.  These regulations sight actions or provisions used for recommending or determining reasons to disqualify a sailor or marine from receiving an Honorable discharge due a service related disability.  The (FSM) and the DAV contend their actions are totally out of character and are in violation of regulations regarding disability separation, especially when a (FSM) has performed such a long and honorable term of service.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		880823 - 880918	COG

Period of Service Under Review:

Date of Enlistment:  880919		Date of Discharge:  901218

Length of Service (years, months, days):

	Active:  02  03  00
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  40

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.7 (5)		Conduct:  3.7 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksmanship Badge

Days of Unauthorized Absence:  None 

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

UNDER HONORABLE CONDITIONS (GENERAL)/Physical disability, existing prior to entry (determined by a Physical Evaluation Board (PEB)),  authority:  MARCORSEPMAN Par. 8404.

Chronological Listing of Significant Service Events:

890912:	NJP for violation of UCMJ, Article 86:  failure to go at the time prescribed to appointed place of duty, Section formation, 1630, 23 Aug 89; violation of UCMJ, Article 86: failure to go at the time prescribed to his appointed place of duty, Section formation, 1000, 5 Sep 89.
Awarded forfeiture of $150.00 per month for 1 month, restriction and 
extra duties for 14 days (restriction for a period of 7 days, suspended for 6 months).  Appealed 890912.  Appeal denied on 891002.

900118:	NJP for violation of UCMJ, Article 86:  failure to go at the time prescribed to motor pool formation at 0701, on 891027; violation of UCMJ, Article 86:  failure to go at the time prescribed to Company formation at 0701, on 891113; violation of UCMJ, Article 86:  failure to go at the time prescribed to a BSEP exam at 0800, on 891024; violation of UCMJ, Article 86: failure to go at the time prescribed to BSEP at 0800, on 891025; violation of UCMJ, Article 91:  willfully disobeyed order of Sgt B_ to fill out a mail card application; violation of UCMJ, Article 92: derelict in the performance of duties by willfully failing to report to BSEP in the proper uniform, at it was his duty to do; violation of UCMJ, Article 92:  failure to obey the lawful order to clean tools issued by Sgt B_, 1630, 891115.
	Awarded forfeiture of $250 per month for 2 months, restriction for 30 days, reduction to E-2.  Appealed.

900228:	Applicant requested humanitarian temporary additional orders to Inspector-Instructor, Miami, FL, due to father's illness.

900507:	CMC denied applicant's request.

900809:	Physical Evaluation Board (PEB) advised CMC that applicant was found to be physically unfit for duty due to a condition that existed prior to entry and directed his discharge by reason of physical disability, existing prior to entry.

900817:	CMC directed the applicant's discharge by reason of physical disability without severance pay.

900917:	Applicant authorized permissive TAD to Miami, FL pending PEB's result.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 901218 under honorable conditions (general) due to a physical disability, existing prior to entry (determined by a Physical Evaluation Board (PEB)) (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).

Issues 1 and 2.  The Board found that the applicant does not warrant an honorable characterization of service.  The applicant’s characterization of service is proper and equitable based upon the applicant’s average conduct markings of below the 4.0 standard required for honorable service.  The applicant did not provide sufficient documentation to support his assertions that his command treated him unfairly, or that his medical condition was the cause for his low conduct markings.  Relief denied.

Issue 3.  The Board has no authority to issue medals or expunge portions of the applicant’s service record.  While he may feel that his medication was responsible for his absences and failure to obey orders that resulted in NJP, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The applicant’s length of service and reason for separation are not the sole determinants of his characterization of service.  In the applicant’s case, he was equitably awarded a discharge under honorable conditions based upon his average conduct markings of 3.7.  Relief is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The applicant did not object to the findings of the PEB.  On 900725, he acknowledged that he accepted the findings of the PEB that stated his medical condition existed prior to entry and recommended administrative separation.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Marine Corps Separation and Retirement Manual, (MCO p1900.16d), effective 890627 until 950817), paragraph 8404 DISCHARGE FOR DISABILITY EXISTING PRIOR TO SERVICE.

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 “afls10.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A3100/A9321/A9401/A9217/9223/A9221