Author: CAP
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Docket No. MD02-00836

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

ex-PFC, USMC
Docket No. MD02-00836

Applicant’s Request

The application for discharge review, received 020522, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant designated the Veterans of Foreign Wars, Baltimore, MD as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214.  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:  UNCHARACTERIZED/ CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.The discharge was incorrect.  I was informed that my signature to accept this discharge would not bar me from Department of Veterans Affairs Benefits or medical treatment.  This is not true.  I have also sustained injuries while on active duty that are now being denied treatment.

Submitted by VFW:

Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on 7/25/02 and the following comments are hereby submitted.

We concur with the Applicant's contention that his discharge be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to honorable.

Documentation

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

2 Copies of DD Form 214 
BCNR's letter to Applicant dtd Apr 16, 2002, returning his application and advising Applicant to petition the NDRB
VFW's letter to BCNR dtd Feb 18, 2002
VFW, Baltimore, MD letter to VFW, Washington, DC dtd Dec 20, 2001
Applicant's application (DD Form 149) to BCNR dtd Oct 3, 2001
Applicant's consent to Dept of VA dtd Dec 17, 2001
Applicant's Complete Service Record Book

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000203 - 001212	COG

Period of Service Under Review:

Date of Enlistment:  001213		Date of Discharge:  011003

Length of Service (years, months, days):

	Active:  00  09  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  46

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (2)			Conduct:  4.1 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

Days of Unauthorized Absence:  None

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

UNCHARACTERIZED/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority:  MARCORSEPMAN Par. 6203.2.

Chronological Listing of Significant Service Events:

010403:	Counseled for deficiencies:  diagnosed physical condition not a disability, (back injury) and any resultant or aggravated condition which interferes with the effective performance of duties.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010411:	Applicant notified of intended recommendation for discharge with uncharacterized service by reason of convenience of the government for a physical condition not a disability.

010411:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010503:	Limited Duty Medical Board Report:  Diagnosis - lower back pain.  Fell on back during run on O-course in Boot Camp.  Treatment:  Sports MED therapy, podiatry and chiropractor treatment.  Limitations:  no heavy lifting greater than 10 lbs, no daily physical training. Placed on limited duty for period of eight months.

010829:	Dropped from training due to back pain.

010904:	CO, NavHosp, Camp Lejeune Recommendation:  18 year old male with history of Lower Back Pain since boot camp.  He has been unable to complete ITB training and has not responded to treatment with light duty, medication, Sports Medicine Rehabilitation, Chiropractic care, and treatment at the Pain Clinic.  Member will be unable to complete the rigors of SOI training.  He has waived his rights to a Physical Evaluation Board after counseling and is recommended for an administrative separation for Mechanical Lower Back Pain, DNEPTE.

010924:	Commanding Officer recommended discharge with uncharacterized service by reason of convenience of the government for a condition not a physical or mental disability.  The factual basis for this recommendation was due to his physical condition identified by Medical Officer's letter of 4 Sep 91.  Commanding Officer’s comments (verbatim):  PFC (Applicant) possesses a medical condition (Mechanical Lower Back Pain, DNEPTE) which is so severe as to impair his ability to complete his required entry level training. Consequently, PFC (Applicant) does not possess the physical ability to continue active service in the Marine Corps.

010927:	GCMCA [CO, School of Infantry, Training Command] directed the Applicant's discharge with an uncharacterized service by reason of physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011003 with uncharacterized service 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).

Issue 1.  With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization.  The Applicant’s discharge characterization accurately reflects his service to his country.  The Veterans Administration 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.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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 P1900.16E, 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

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:  A2900/A9453/A9217/A9221