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USMC | DRB | 2002_Marine | MD02-01139
Original file (MD02-01139.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD02-01139

Applicant’s Request
The application for discharge review, received 020806, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested 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 030424. 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/DISABILITY, SEVERANCE PAY, authority: MARCORSEPMAN Par. 8401.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. I wish to be considered for an Honorable discharge. I sustained a shoulder injury during Basic Training and later had to have surgery as a result of this injury. I feel that I should not have received a General (Under Honorable Conditions). Please find enclosed attachments to prove that I was released as a result o my shoulder injury and there was no misconduct involved. Please consider me for an upgrade of this discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Department of Veterans Affairs, Chicago Regional Office, dtd Sep 4, 2001, concerning Applicant's service connected disability benefits (2 pages)
 Copy of DD Form 214 (Copy 4 & 1)
 PEB memo, dtd Mar 1, 2000, to Applicant concerning Disability Transition Assistance Program (DTAP)
CO, NavHosp, Camp Lejeune, ltr dtd Mar 1, 2000, to Applicant's command, concerning PEB processing and recommending limitations of duty for the Applicant
Applicant's Statement of Awareness (PEB processing)
Applicant's Report of Medical Board dtd Mar 1, 2000 (3 pages)
Applicant's Election of Options for Informal Findings of Unfit for Duty, dtd Apr 6, 2000 (2 pages)
Applicant's Acceptance of Informal Findings, dtd Apr 6, 2000, with estimated severance pay
Conclusion of Disability Proceedings
Statement of Patient Concerning the Findings of a Medical Board
Findings of the Physical Evaluation Board Proceedings dtd Mar 31, 2000
Department of Veterans' Affairs, State of Illinois, ltr dtd Jul 25, 2002 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980116 - 980908  COG

 Period of Service Under Review :
Date of Enlistment: 980909               Date of Discharge: 000515

 Length of Service (years, months, days):

         Active: 01 08 07
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Found in the service record.

 Character, Narrative Reason, and Authority of Discharge (at time of issuance, but administratively corrected):

GENERAL (UNDER HONORABLE CONDITIONS)/DISABILITY, SEVERANCE PAY, authority: MARCORSEPMAN Par. 8401.

 Chronological Listing of Significant Service Events :

990816:  Naval Hospital, Camp Lejeune, NC: Pt in for surgery. Preoperative Diagnoses: Right Shoulder Recurrent Dislocations and Bankart Lesion
         Indications for Procedure: 19 year old active duty Marine, infantryman, with a history of a recurrent right shoulder dislocations since boot camp when he fell. He has been treated with rest and physical therapy and his shoulder has subsequently dislocated numerous times with less and less activity including rolling over in his rack. He presents for operative stabilization. Risks and benefits have been explained to him and he wishes to proceed with an open stabilization procedures.

991029:  Naval Hospital, Camp Lejeune, Medical Board diagnosed Applicant with Right Shoulder Instability, recommended eight months of limited duty.

000301:  Naval Hospital, Camp Lejeune, Medical Board Assessment: Chronic pain and tight anterior capsule status post multiple dislocations of his right shoulder and Bankart repair and capsular shift, DNEPTE #719.41.
         Recommendation: Because of his chronic pain and instability with his shoulder he is unfit to continue on active duty and recommendations are to continue physical therapy, avoid heavy lifting, avoid overhead activities and any strenuous use of his right upper extremity. Recommend Medical Board be referred to the Director, Naval Council of Personnel Boards. Applicant accepted Findings of Medical Board.

000302:  CO, 6 TH MAR 2D MAR DIV II MEF, Camp Lejeune, NC, letter of non-medical assessment, to Physical Evaluation Board. Applicant unable to deploy with unit for CAX during period of January 4, to February 28, due to his injury, hasn't participated in field-training exercises aboard Camp Lejeune since April 1999, due to injury, his physical condition has totally prevented him from participating in physical fitness events - PT, conditioning hikes, etc., and unable to participate in any live firing training exercises that requires him to place a weapon in or on his shoulder or wear any heavy body armament. His physical condition appears to be legitimate and serious and not due to personal interests. LCpl G_ (Applicant) does not have any pending disciplinary or administrative action that could result in an unfavorable separation from the service.

000331:  Physical Evaluation Board (PEB) Findings: Unfit and recommended separation from active duty with severance pay with a combined disability rating of 10%. The PEB also found that the disability was incurred while entitled to receive basic pay, disability did not occur during a period of unauthorized absence, disability is not result of intentional misconduct or willful neglect, disability did occur after 9/14/1978, disability may be permanent, and disability did not result from a combat related injury as defined by Title 26 U.S. Code Section 104(b)(3).

000407:  PEB, acting for the Secretary of the Navy, authorized Applicant's discharge due to physical disability with severance pay.

000427:  DD Form 215 issued correcting the DD Form 214 to show payment of disability severance pay on 000515.

000515:  As stated on the DD Form 214, Applicant discharged under honorable conditions (general) due to physical standards.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000515 under honorable conditions (general) due to physical disability with severance pay (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 that in the Applicant’s case, the characterization of service should have been the “type warranted by service record.” A review of the Applicant’s records indicated an honorable discharge was warranted. There was no adverse information that would have warranted a less favorable characterization. Therefore, relief is granted.

Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16E), paragraph 8401 DISABILITY DISCHARGE WITH SEVERANCE PAY , states that per 10 U.S.C. 1203 and 1206, certain Marines not eligible for retirement by reason of physical disability, but found unfit for duty by reason of physical disability, may be discharged from the Marine Corps with severance pay.

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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