Author: CAP
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Docket No. MD05-00700

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

 ex-PFC, USMC
Docket No. MD05-00700

Applicant’s Request

The application for discharge review was received on 20050316.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20050629.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall change to:  HONORABLE/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “For VA Benefits”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990910 - 991114	COG

Period of Service Under Review:

Date of Enlistment:  991115		Date of Discharge:  001114

Length of Service (years, months, days):

	Active:  01  00  00
	Inactive:  None

Age at Entry:  20			Years Contracted:  5

Education Level:  12			AFQT:  39

Highest Rank:  PFC			MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (2)		Conduct:  4.2 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Sharpshooter Badge

Days of Unauthorized Absence:  None

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.

Chronological Listing of Significant Service Events:

991209:	Branch Medical Clinic, MCRD San Diego, CA:  20 year old complains of right knee pain times 4 days.  States pain is to patella.  States he has fallen on it 4-5 times, and been hit with a rifle, denies any pain before these events happen.  Increase pain with lifting knee.
	Assessment:  Knee Strain
	Plan:  Pt educated on DX, TX, RX, and follow up.  Verbalizes understanding and return if symptoms persist/worsen.  Prescribed Motrin 200mg and placed on light duty 2 days.

000118:	Branch Medical Clinic:  Lifting foot locker 4 weeks ago, lower back pain, still unable to perform required activity.  Left leg gets pain shooting into calf, down to foot, hurts to stretch and jog, hike, etc.
	Assessment:  Lower back pain (clinically HNP Left L5/S1)
	Plan:  Continue meds and return as necessary.

000328:	Diagnosed by MRI, multilateral disk disease.  Patient reports no back problems prior to boot camp.  [Extracted from medical record entry dated 000531]

000614:	SMART CENTER:  2 week follow up after returning from boot leave.  Residual LBP and stiffness.  Anticipate return to full duty 000627 if back OK.

001013:	Orthopedics Consultation:  Chief compliant lower back pain since December 1999 – January 2000 while in bootcamp tripped and fell with pain since that time.  Improved enough to finish training.
	Re-started training June at SOI, re-occurrence of low back pain, chilopractic no relief, therapy helping.
	Assessment/Plan:  Low back pain with L-5, HNP, discussed options with patient and will recommend admin separation at command level.

001017:	Counseled for deficiencies in performance and conduct [Diagnosed with herniated disk that hinders your ability to train]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

001020:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) characterization of service by reason of convenience of the government for a physical condition not a disability, as result of being diagnosed with a herniated disk in lower back.

001020:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

001020:	Commanding Officer, Headquarters and Support Battalion, SOI, Camp Pendleton, recommended Applicant’s general (under honorable conditions) discharge by reason of convenience of the government for a condition not a physical or mental disability.  

001023:	Commanding Officer, School of Infantry, MCB, Camp Pendleton, forwarded recommendation for discharge with a general (under honorable conditions) character of 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 numerous medical complaints regarding his lower back pain and a medical evaluation concluding the  Applicant had a herniated disk in his lower back.

001102:	CG, Marine Corps Base, Camp Pendleton, directed the Applicant's discharge with a general (under honorable conditions) character of service for convenience of the Government by reason of a physical condition not a disability, i.e., herniated disk.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001114 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 but not equitable (C and D).

Issue 1.  When a service member is processed for involuntary discharge based on a condition not a disability, reference (A) indicates that the character of service should be honorable or general (under honorable conditions).  A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member's military record.  The Board could find no adverse counselings, nonjudicial punishment proceedings or misconduct to merit a general discharge.  The Applicant’s proficiency and conduct marks are sufficient for an honorable characterization of service.  Therefore, the Board, finding an inequity, voted to change the Applicant’s character of service to honorable.  Relief granted.

Pertinent Regulation/Law (at time of discharge)

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 95 until 31 Aug 2001), paragraph 6203, CONVENIENCE OF THE GOVERNMENT

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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

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.