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USMC | DRB | 2002_Marine | MD02-00570
Original file (MD02-00570.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-00570

Applicant’s Request
The application for discharge review, received 020311, 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 Military Order of Purple Heart as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021217. 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, as submitted

 1.The General Discharge that I received inequitable because it was based upon a misdiagnosis of a simple ankle sprain (Incl 2-12). Request the discharge be changed to Honorable.

2. Request the RE code be changed from RE-4 to RE-1, to permit re-entry into service at a future date.

 3. Dear Sir:

I write to you on behalf of a young man, (Applicant), a former U.S. Marine who is a victim of injustice on the part of the U. S. Marine Corps. He received a General Discharge after seven (7) months and twenty-two (22) days of active duty due to inability to perform (JFV1 sep code) as stated on his DD 214.

(Applicant) suffered an ankle injury while in boot camp and later aggravated that injury while in training. Treatment by military medical personnel consisted of an X-ray of the left ankle and medication per military medical records attached. He was then given the General Discharge.

Upon discharge and return to HOR (Applicant) was seen by Dr. A_ W_ R_, MD, of the Clinic of Orthopedic Surgery in Fond du Lac, WI. Dr. R_ states in his letter (Enclosure) "Subsequent MRI scan done recently shows areas of bone edema present within both calcanus and talus consistent with a stress injury.” He concludes by stating, "To a reasonable degree of medical certainty, I believe that his current problems are a direct result of overstress from his activities in the training activities for the Marines." Subsequently, (Applicant) was awarded a thirty percent (30%) service connected disability rating by the Veterans Administration for "residuals of left ankle and heel fracture" effective June 24, 2000.

Request that this injustice be corrected by upgrading (Applicant) discharge from General Discharge (under Honorable Conditions) to an Honorable Discharge (under Honorable Conditions). Yours in Patriotism,

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Letter from Applicant's doctor dated June 28, 2000 with enclosures
Letter from Department of Veterans Affairs concerning entitlement to VA benefits
Twenty-four pages from Applicant's medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                990330 - 991101  COG

 Period of Service Under Review :
Date of Enlistment: 991102               Date of Discharge: 000623

 Length of Service (years, months, days):

         Active: 00 07 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 43

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

991120:  Branch Medical Clinic: A: Left ankle sprain. Light duty for 2 days.

991122:  Branch Medical Clinic: A: Resolving left ankle sprain. Light duty for 2 days.

991126:  Medical entry: Left ankle sprain. Limited duty 1 day.

000225:  Sports Medicine and Reconditioning Therapy Injury Report: Diagnosis: Grade I ATFL strain. Treatment: Ice, ROM exercises, E-Stim for acute pain, strengthening/power exercises, continue motrin, ankle brace. Disposition: Light duty for 4 days.

000308:  Sports Medicine and Reconditioning Therapy Injury Report: Diagnosis: Grade II ankle sprain/R/O avulsion. FX distal file. Treatment: Ice, aircast, crutches. Disposition: Light duty for 15 days.

000316:  Sports Medicine and Reconditioning Therapy Injury Report: Diagnosis: Inv. Left ankle sprain x 4 wk, improved. Treatment: Strengthening. Ankle brace. Disposition: Light duty for 14 days. Plan follow up x 2 wk.

000322:  Sports Medicine and Reconditioning Therapy Injury Report: Diagnosis: Resolving left ankle sprain. Disposition: Light duty for 10 days.

000407:  Sports Medicine and Reconditioning Therapy Injury Report: Diagnosis: Resolving left ankle sprain. Disposition: Fit for full duty.

000421:  Sports Medicine and Reconditioning Therapy Injury Report: Diagnosis: Resolved left ankle sprain. Applicant is a treatment failure. Recommend administrative separation.

000421:  Applicant is a treatment failure. No further treatment options are available at this time. Applicant is to return to full duty. If Applicant is unable to train and returns for same condition, Applicant is recommended for administrative separation for the good of the USMC.

000524:  Counseled for deficiencies in performance and conduct. [Applicant diagnosed with a left ankle sprain that hinders ability to train.] Necessary corrective actions explained, sources of assistance provided. Applicant advised of condition and is being administratively separated.
000608:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of convenience of the government for a physical condition not a disability.
000608:  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.

000608:  Commanding Officer recommended discharge under honorable conditions (general) by reason of convenience of the government for a condition not a physical or mental disability. The factual basis for this recommendation was as a result of being diagnosed as a treatment failure due to left ankle sprain. Applicant re-evaluated by medical authorities and found not fit for continued service. This condition hinders Applicant's ability to train and has also been determined to be incompatible with continued military service.

000616:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] directed the Applicant's discharge under honorable conditions (general) by reason of physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000623 under honorable conditions (general) by reason of convenience of the government due to a 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).
Issues 1 and 3. The Board found that in the Applicant’s case, the characterization of service should have been the “type warranted by service record.” A review of Applicant’s records indicated an honorable discharge was warranted. Applicant’s performance and behavior marks were above the standard required for an honorable discharge and there was no adverse information that would have warranted a less favorable characterization. Therefore, relief is granted.

Issue 2. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.


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      


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