DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100
TRG

Docket No: 6665-00
14 June 2001

 

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD OF (iiiinti(ierpmesmeesssnes ,

Ref: (a) Title 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachments
(2) Case Summary
(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the United States Marine Corps filed enclosure
(1) with this Board requesting that his record be corrected to
show a better characterization of service than the general
discharge issued on 31 March 1994 and to change the reason for
discharge to physical disability.

2. The Board, consisting of Mr. Ensley, Mr. Pfeiffer and Mr.
Cooper, reviewed Petitioner's allegations of error and injustice
on 5 June 2001 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record. Documentary material considered by
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice, finds as
follows:

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Although it appears that Petitioner's application was
not filed in a timely manner, it is in the interest of justice to
waive the statute of limitations and review the application on
its merits.

c. Petitioner enlisted in the Marine Corps on 21 June 1993
at age 13. On 8 November 1993 he was counseled concerning his
poor attitude and for holding his superiors in contempt.
Subsequently, he was referred to a physical evaluation board
(PEB). The PEB report states, in part, as follows:

The patient (Petitioner) had an injury in boot
camp, stating that a locker fell on his foot which
created right arch pain. The patient recovered from
that and returned to normal duty. The patient had
several other visits where he was diagnosed with
plantar fasciitis to his right foot and treated
conservatively for plantar fasciitis with nonsteroidal
anti-inflammatories and shoe gear changes. The
patient's chief complaint at this time is pain, plantar
to his first metatarsal head where he has no history of
trauma. The patient has been treated for the pain
under his first metatarsal head with modifications to
his shoe gear without relief.

The PEB found that he had a congenital problems with his right
foot which existed prior to his entry into the Marine Corps and
which was not service aggravated, and recommended his discharge
from the Marine Corps.

d. On 28 January 1994 Petitioner received nonjudicial
punishment for a six hour unauthorized absence from his duty as
firewatch. The punishment included restriction, extra duty and
forfeiture of pay. However, the entire punishment was suspended
for three months. On 2 March 1994 he was notified of separation
processing by reason of erroneous enlistment, and that he was
being recommended for a general discharge because of the
nonjudicial punishment. On 17 March 1994 the discharge authority
directed a general discharge by reason of erroneous enlistment
and he was so discharged on 31 March 1994. At that time he was
assigned an RE-3P reenlistment code.

e. Petitioner has submitted evidence showing that on 9
August 1999 the Department of Veterans Affairs (DVA) found that
his foot problem was service connected and rated his disability
at 10% disabling, retroactive to 1 January 1995. The DVA noted
that although he had a congenital problem with his foot, it was
at least as likely as not that his continuing foot pain was
compatible with foot trauma while in the Marine Corps.
Petitioner is contending that his foot problems began due to the
negligence of a drill instructor which resulted in a foot locker
being dropped on his foot. He is requesting an honorable
discharge and a change in the reason for discharge to either
physical disability retirement or a medical discharge with
severance pay.

f. Petitioner has previously requested disability
retirement or a medical discharge from the Board, which was
denied. In addition, several requests for reconsideration on
this issue have also been denied. Since he has not submitted
anything new concerning this issue, there is no basis for
reconsideration. Therefore, the case was only accepted so the

Board could consider his request to recharacterize the discharge
from general to honorable.

g. The Board is aware that when an individual is discharged
due to an erroneous enlistment the characterization of service is
the type warranted by the service record, which is normally based
on conduct and proficiency averages computed from marks assigned
during periodic evaluations. It appears that Petitioner was
never evaluated in his short period of service. In sucha
situation, the regulations allow the discharge authority to
determine if an honorable or a general discharge is appropriate.

CONCLUSION:

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action. The Board notes that he only had one disciplinary
infraction for a relatively minor offense and one other unrelated
counseling entry. The Board also notes that his foot pain may
have had an impact on his attitude and behavior. Given the
circumstances, the Board concludes that in retrospect, an
honorable discharge by reason of erroneous enlistment was
warranted in this case.

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that
on 31 March 1994 he was issued an honorable discharge by reason
of erroneous enlistment vice the general discharge now of record.

b. That this Report of Proceedings be filed in Petitioner's
naval record.

4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.

ROBERT D. ZSALMAN ALAN E. GOLDSMIT

Recorder Acting Recorder

5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6 (e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
‘behalf of the Secretary of the Navy.

W. DEAN PFEIF
Executive Dire