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USMC | DRB | 2001_Marine | MD01-01097
Original file (MD01-01097.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD01-01097

Applicant’s Request
The application for discharge review, received 010820, 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 American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020320. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. 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
1. (Equity Issue) Despite his ongoing medical problems, this former member opines that he was able to maintain sufficient performance and conduct marking to warrant a fully honorable discharge.
2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's Statement in Support of Claim
 Letter of Employment from Adron Tool Corp dtd Sep 18, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                991217 - 992228  COG
                                              980624 - 990701  Medically disqualified due to
                                                                        hardware in right ankle.
Period of Service Under Review :
Date of Enlistment: 991229               Date of Discharge: 001027

 Length of Service (years, months, days):
         Active: 00 09 29
          Inactive: None

 Age at Entry: 19                          Years Contracted: 4
Education Level: 12                        AFQT: 84

 Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):

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

GENERAL (UNDER HONORABLE CONDITIONS)/ CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

 Chronological Listing of Significant Service Events :

980624:  Enlisted in the Marine Corps Delayed Entry Program.
990701:  Medically disqualified for USMC due to hardware in right ankle.
991105:  Medical Associates, Health Centers: Removed hardware from right ankle and released from care on November 15, 1999. (Medical documentation in service record).
991217:  Enlisted in the Marine Corps Delayed Entry Program.

 991229:  Enlisted in the Marine Corps for a term of four years.
000316:  Reported to Naval Hospital, Camp Pendleton for treatment: Laparoscopic exploration converted to Ex LAP. Graham's patch for prepyoric penetrating ulcer. Wash out. Incision closed by secondary intention.
000324:  Released from hospital with physical limitations: No heavy lifting greater than 10 lbs for 6 wks, no strenuous exercise or PT for 6 wks, no hot tubs or soaking bathes for 6 weeks, no driving for 6 wks.
000331:  Placed on limited duty for 8 months.

 000709:  Hd, Podiatric Medicine Clinic/Sports Medicine Dept, Branch Medical Clinic, MCRD, San Diego: Recommend change of Military Occupational Specialty due to right ankle injury.

000830:  Sports Medicine and Reconditioning Therapy for knee/foot pain with increased activity, 6 miles hike. Diagnosis: Patella tendonitis.

000908:  Sports Medicine and Reconditioning Therapy for ankle pain.

000915:  Sports Medicine and Reconditioning Therapy, Injury Report: This pt is a treatment failure. No further treatment options are available at this time. If member is unable to train and return for same conditions, member is recommended for admin separation for the good of the USMC. Pt has been previously cleared for full duty for G.I. problems. Pt has chronic leg pain condition related to EPTE injury & cognitive biomechanics.

000920: Applicant counseled this date for following deficiencies: Chronic tendonitus of lower extremities. Advised of corrective actions.

000925:  Applicant notified of intended recommendation for discharge by reason of convenience of the government for a physical condition not a disability due to being diagnosed as a treatment failure due to chronic tendonitis of lower extremities. Advised the least favorable characterization of service is a General (Under Honorable Conditions).
000925:  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.
000925:  Commanding officer recommended discharge with a General (Under Honorable Conditions) by reason of convenience of the government for a condition no a physical or mental disability. The factual basis for this recommendation was due to medical condition - chronic tendonitis of lower extremities. Commanding officer’s comments: "Due to numerous medical complaints regarding his chronic tendonitis of lower extremities, Private (Applicant) was a treatment failure due to his unsuccessful rehabilitation. Accordingly, they recommend administrative separation."
001016:  GCMCA [CG, MCB, Camp Pendleton] directed the applicant's discharge with a General (Under Honorable Conditions) by reason of physical condition not a disability, i.e. chronic tendonitis of lower extremities.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001017 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. The Board found the applicant’s performance evaluation averages were worthy of an honorable characterization of service. The Board found no derogatory counseling entries or other evidence of actions that marred the applicant’s tour of service. The discharge the applicant received was inequitable. His characterization of service warrants an upgrade 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), 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 “ 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      


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