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USMC | DRB | 2003_Marine | MD03-00532
Original file (MD03-00532.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00532

Applicant’s Request
The application for discharge review was received on 20030211. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20040212. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I was discharged from the service because of a knee injury (which happened while I was in service). I was on limited duty for eight (8) months and later was put on another limited duty for 8 months before discharge. I would have completed my term if it had not been for my physical condition (knee).”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“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 the application. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Seventeen pages from Applicant’s service record
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                991122 - 991129  COG

 Period of Service Under Review :
Date of Enlistment: 991130               Date of Discharge: 020412

 Length of Service (years, months, days):

         Active: 02 04 13
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 32

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (6)              Conduct: 4.0 (6)

 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 :

001017:  Counseled for deficiencies in performance and conduct. [Apprehended on 000805 by PMO during a routine inspection sticker check at the front gate of the air station, after a record check revealed that your driving privileges were suspended in Tennessee.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010213:  NJP for violation of UCMJ, Article 92:
 Specification: Failure to obey an order or regulation, to wit: On 010201, viewing pornographic material on a government computer after being told 4 times by fellow Marines not to be looking at the material.
Awarded restriction and extra duties for 30 days, reduction to PFC. Not appealed.
010914:  Medical Board: Summary of diagnoses: 1. Lateral patellar compression syndrome right knee, did not exist prior to enlistment. 2. Chondromalacia patella by MRI right knee, did not exist prior to enlistment. 3. Contusion right knee (acute on chronic injury), did not exist prior to enlistment.
         Opinion of the Medical Board: Achieved maximum benefit of outpatient therapy. Recommend Applicant be found unfit for active duty and therefore be referred to a physical examination board for adjudication.
011106:  Musculoskeletal Medical Clinic: Recommend consideration of administrative separation.

011126:  Applicant accepted preliminary findings from PEB informing Applicant of a finding of fit for duty.

020102:  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.
020109:  Applicant advised of 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.

020211:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of convenience of the government for a condition not a physical or mental disability. The factual basis for this recommendation was your physical condition as evidenced by your medical board report.

020303:  Counseled for deficiencies in performance and conduct. [Physical condition not a disability. Specifically, you are hereby counseled concerning injuries to your right knee.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020305:  SJA review determined the case sufficient in law and fact.

020305:  GCMCA [Commander, 2d Marine Aircraft Wing] directed the Applicant's discharge with a general (under honorable conditions) by reason of physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020412 under honorable conditions (general) 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 and equitable (C and D).

Issue 1. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion and an adverse counseling entry on another occasion. The Applicant’s conduct reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable is inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

Issue 2. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

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. 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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