DEPARTMENT OF THE NAVY

BOARD FOR

 

CORRECTl@‘l  OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370.510

0

ELP
Docket No. 6221-00
16 July 2001

I Dea

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

Your allegations of error and injustice were

A three-member panel of the Board for Correction of Navy Records,
sitting in executive session,
27 June 2001.
reviewed in accordance with administrative regulations and
procedures applicable to the proceedings of this Board.
Documentary material considered by the Board consisted of your
application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.

considered your application on

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

You enlisted in the Marine Corps on 28 November 1994 for four
years at age 23.
The record reflects that you were advanced to
LCPL (E-3) and served without incident until 26 March 1996, when
you received nonjudicial punishment  
disrespect.
Punishment imposed consisted of a reduction in rank
to PFC (E-3), forfeitures of $300 per month for two months, and
45 days of restriction and extra duty.
In April 1996, you were
formally counseled for violating a general order and for taking
more than one newspaper from a newspaper machine, and warned that
failure to take corrective action could result in administrative
separation.

(NJP) for two incidents of

t

At a medical examination on 17 April 1996, you were diagnosed
with a "traumatic left median neuropathy with electromyographic
evidence of denervation and secondary focal

dystonia." A

 

physical evaluation board (PEB) was indicated since your
inability to "flex or oppose your left  
permanent, and you were considered unable to perform the duties
A medical board concurred with the diagnosis and
of your rank.
recommended that your case be referred to a PEB for further
adjudication.

thumb" appeared to be

On 3 May 1996 you received a second NJP for failure to go to your
appointed place of duty and four instances of failure to obey a
lawful order.
and extra duty.

Punishment consisted of a forfeiture, restriction

The record reflects that on 13 May 1996, a PEB requested that
your former command provide a copy of the line of duty
investigation that was conducted regarding the stab wound you
sustained to your left wrist while horsing around in the barracks
on or about 4 March 1995.
On 17 June 1996, after no response,
the command was advised that if it could not provide a copy of
the preliminary inquiry and the pertinent health record entries,
or the line of duty investigation,
terminated.

your PEB case would be

On 7 August 1996 you received your third NJP for a UA of about a
day and absence from your appointed place of duty.
Punishment
imposed was a forfeiture of $228 and 14 days of restriction and
extra duty, all of which were suspended for six months. On
29 August 1996 the suspended punishment was vacated and ordered
executed.
During the four month period from August to November
1996 you were formally counseled and warned on four occasions
regarding the deficiencies in your personal appearance, apathetic
attitude, and misconduct involving  
disobedience of orders.

UAs, disrespect, and

On 25 November 1996 you were notified that you were being
recommended for discharge under other than honorable conditions
by reason of misconduct due to minor disciplinary infractions.
You were advised of your procedural rights, declined to consult
with legal counsel or submit a statement in your own behalf, and
waived the right to present your case to an administrative
discharge board (ADB).
recommended your discharge under other than honorable conditions
by reason of misconduct due to minor disciplinary infractions. A
staff judge advocate found the discharge processing documentation
to be sufficient in law and fact.
The discharge authority
approved the recommendation and on 4 December 1996 you were
administratively reduced to PVT (E-l) due to incompetence. On
18 January 1997,' a DD Form 214 was issued showing that you were
honorably discharged by reason of personality disorder. On
6 March 1997, a DD form 215 (Correction to DD Form 214) was

Thereafter, the commanding officer

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issued and corrected the reason for discharge to  
disciplinary infractions" and the characterization to "other than
honorable 
Review Board denied your request for an upgrade of your
discharge.

On 25 July 1997 the Naval Discharge

conditions.11

"minor

This Board was unsuccessful in obtaining the medical records
which were available at the time of the 
A staff
member of the Board was advised by the PEB that it had no records
and that your case was terminated prior to any final action.

NDRB's review.

Paragraph 8508 of the Marine Corps Separation Manual states as
follows:

Administrative separation does not supersede a disability
separation; only disciplinary separation is not precluded by
the disability statutes and such separations supersede
disability separation or retirement.

Additionally, the regulation states that if a disciplinary or
administrative discharge proceedings results in either a punitive
or administrative discharge for misconduct, the medical board is
filed in the Marine's terminated health record and the physical
defects are noted in the medical record.

SECNAVINST 
evaluation system within the Department of the Navy.
2072a of that directive states as follows:

1850.4~ provides binding guidance on the disability

Paragraph

Whenever a member is

Disciplinary separation is not precluded by the

a.
disability statutes and such separation
disability separation or retirement.
being processed for disability evaluation and, at the same
time, administrative involuntary separation for misconduct,
(or) disciplinary proceedings which could result in a
punitive discharge, disability evaluation shall be suspended
and the non-disability action monitored by
the action taken does not include punitive or administrative
discharge for misconduct, the case will be forwarded or
returned to the PEB for processing.
(such a) discharge,
in the member's terminated health record.

the medical board report will be filed

If the action includes

. CMC. If

. . 

 

. . 

. supercede

 

In its review of your application the Board weighed all
potentially mitigating factors such as your letters of reference
attesting to your post-service achievements and employment in a
home therapy program, and your university academic records.
also contend that you were unfairly disciplined on several
occasions after physical disability proceedings were initiated,

You

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separ,ation  processing.

Administrative separation

Since the PEB had not been approved by that time,

NJPs for nine separate offenses and a vacation action,

were singled out for discipline and counseling because of these
proceedings, and that command delays effectively terminated the
PEB proceedings and denied you a medical discharge in favor of an
Counsel asserts that your PEB was
administrative discharge.
mishandled and that regulations provide that an administrative
separation does not supersede disability separations which have
been initiated.
The Board concluded that the foregoing factors were insufficient
to warrant recharacterization of your discharge given your record
of three 
and formal counseling on five occasions all of which occurred
Despite
during an eight period from March to November 1996.
counsel's contentions to the contrary, in most cases,
administrative separation for misconduct does supersede
disability 
action in your case did not commence until after your third NJP
and seven months after a medical board referred your case to a
PEB.
administrative separation action took precedence over any
disability processing.
for discipline because of these proceedings is neither supported
by the evidence of record nor by any evidence submitted in
support of your application.
more than one instance of misconduct prior to the initiation of
and you could have been processed
any medical board proceedings,
for separation by reason of misconduct as early as May 1996 when
you received your second NJP.
Clearly you failed to learn from
your initial disciplinary experience and your continued
infractions demonstrated a willful disregard for military
discipline and authority.
opportunity to present your case to an ADB, the one opportunity
you had to show why you should be retained or discharged under
honorable conditions.
compliance with applicable regulations and there is no indication
of any procedural errors that would have substantially
jeopardized your rights.
was proper and no change is warranted.
application has been denied.
of the panel will be furnished upon request.

Your discharge was accomplished in

The Board concluded that the discharge

The names and votes of the members

Accordingly, your

Your contention that you were singled out

The Board also noted that you had

Furthermore, you waived the

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard,  
presumption of regularity attaches to all official records.

it is important to keep in mind that a

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Consequently, when applying for 
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

"g correction of an official naval

Sincerely,

W. DEAN PFEIFFER
Executive Director