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USMC | DRB | 2003_Marine | MD03-00122
Original file (MD03-00122.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD03-00122

Applicant’s Request
The application for discharge review, received 20021017, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to “a re-enlistment code that I can re-enter the service.” The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was three to two that the character of the discharge shall change. The Board’s vote was unanimous that the narrative reason for discharge shall remain the same. 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.       Dear Review Board I believe that my re-enlistment code should be changed to something that I may re-enter the military. On my current narrative reason for separation is a involuntary discharge condition not a physical disability disorder. I am the same person that I was when I entered the military. The reason I was discharged is because I had a cyst in one of my testicles which needed surgery to be removed. The Naval Doctors and my family doctors had two different opinions on how to remove it and how much rest I needed. My doctor said 30 days the Navy said 3 days. It did involve cutting my testes so I went with my doctor. This made my 1 st sergeant upset and he called me to this office to sign a page 11 for refusing military surgery. I tried to explain what this surgery would involve but he still started proceedings to be discharged. After receiving my DD214 I looked at the class of service and re-enlistment code to see General discharge and RE4, when I asked what RE4 meant they said I would never be able to enter the service again. I don’t understand why, to my knowledge I was a good Marine its just when I choose civilian doctors to do the surgery I was released from Duty. Can my re-enlistment code be changed so that I may reenter the service.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                950802 - 960609  COG

 Period of Service Under Review :
Date of Enlistment: 960610               Date of Discharge: 970909

 Length of Service (years, months, days):

         Active: 01 03 00
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 34

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (3)                       Conduct: 4.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Badge

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority: MARCORSEPMAN Par. 6203.3.

 Chronological Listing of Significant Service Events :

970324:  Counseled for deficiencies in performance and conduct. [On 970314, SMN notified Dr. R___, Lester Naval Hospital, of his intent to refuse surgery to repair an on going medical problem, specifically, an Epidydimistis cyst. SNM has been on a light duty status since graduating from Recruit Training in Aug 1996. SNM was on light duty at his MOS School and checking into 9 th ESB on light duty. Since joining this command SNM has been on light duty three separate 30 day occasions, beginning 961224. Currently SNM’s light duty chit expired on 970310.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970701:  Medical Recommendations: Applicant initially seen by Medical Officer on 961224 with a complaint of 2 year history of right sided scrotal pain. He was initially treated with antibiotics for a presumed infection of the epididymis. When seen 4 days later for a follow up visit, he was still complaining of pain. I suspected he had an epididymal cyst and ordered an ultrasound of his scrotum which confirmed the diagnosis Once the diagnosis was established, I placed him on an adequate regimen of conservative (i.e., nonsurgical) therapy. This included light duty for nearly two months, scrotal support, and nonsteroidal anti-inflammatory medication. When he still had no improvement on this regimen, I explained to him that he either needed to return to full duty or have the cyst removed surgically. Since neither option was palatable to him, I referred him to the Urogoly Department at USNH Lester. He was seen there by Dr. R_, who counseled him that surgical excision would most likely cure his pain. However, LCpl D_ refused to have the curative operation, and obviously could not be forced to do so. It is the opinion of myself as well as LCDR R_ that LCpl D_ be administratively separated from the Marine Corps. Although a medical discharge is an opinion, this Marine stands to gain nothing from a PEB. As his condition existed prior to enlistment, he will not be eligible for disability pay or VA benefits. Additionally, a medical board is a lengthy process which will take a minimum of 3 months to complete, whereas administrative separation can be accomplished much more expediently.

970811:  Applicant notified of intended recommendation for discharge under honorable conditions (general) for the convenience of the government due to a physical condition not a disability (infection of the epididymis).

970811:  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.

970811:  Commanding Officer recommended discharge under honorable conditions (general) for the convenience of the government due to a physical condition not a disability (infection of the epididymis). The factual basis for this recommendation was respondent’s refusal of medical treatment to rectify a current medical problem. Respondent was evaluated by a Medical Officer at Camp Hansen Medical Clinic on 961224, and diagnosed as having a epididymis cyst. Furthermore respondent refuses to have the curative operation, and his condition continues, with no improvement, to date. Respondent had been counseled and understands that his condition makes him unsuitable for further military service.

970819:  SJA review determined the case sufficient in law and fact.

970821:  GCMCA [Commander, 3d Force Service Support Group] directed the Applicant's discharge under honorable conditions (general) for convenience of the government due to a physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970909 under honorable conditions (general) for convenience of the government due to a physical condition not a disability (infection of the epididymis) (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

 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 Applicant’s records indicated an honorable discharge was warranted. The 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 as to the characterization of service is granted.
The Applicant’s refusal of recommended medical treatment was a proper and equitable basis for administrative separation by reason of convenience of the government due to a physical condition not a disability (infection of the epididymis). No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief as to the narrative reason for separation is therefore denied.

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. Relief is therefore denied.

 The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.









Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

 B. Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until Present.

 C. 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.

D. 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.

E. 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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