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USMC | DRB | 2003_Marine | MD03-00960
Original file (MD03-00960.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00960

Applicant’s Request
The application for discharge review was received on 20030508. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the narrative reason changed to medical disability. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040408. 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 and narrative reason 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. “Due to injury to Right Femoral Neck Stress Fracture. It was recommended that I be separated from Active Service – further training would have caused possible severe injury. By Smart Center, Naval Hospital, Camp Pendleton, after 6 months of therapy.
I request that my DD Form 214 be changed to read – Honorable Type of Separation. 10% disability, due to service connection.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 2. “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable to that of Honorable.

The FSM served on active service from September 13, 2000 to November 20, 2001 at which time he was discharged due to Physical Disability.

Although the FSM has not submitted any documentation in support of his claim, we as the representative, ask that consideration be given to equitable relief. The FSM record shows no indication of counseling or other adverse action. We therefore ask for consideration of his request for an Honorable discharge. This is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

 Respectfully,”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Rating decision from Department of Veterans Affairs, dated May 28, 2002
Department of Veterans Affairs letter, dated March 19, 2003
Applicant’s e-mail to BVA contact, dated April 2, 2003
Applicant’s DD Form 214 (Member 1 and 4)
Letter to Applicant from Department of Veterans Affairs, dated June 10, 2002
Forty-four pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000323 – 000912  COG

 Period of Service Under Review :
Date of Enlistment: 000913               Date of Discharge: 011120

 Length of Service (years, months, days):

         Active: 01 02 08
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 11                        AFQT: 66

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)              Conduct: 4.2 (1)

 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 :

010626:  Medical evaluation by SMART Center:
         AXIS I: Right femoral neck stress fracture.
010723:  Counseled for deficiencies in performance and conduct. [You have been diagnosed with right femoral neck stress facture that hinders your ability to train.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010814:  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.
010814:  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.

010814:  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 as a result of numerous medical complaints to medical authorities regarding his right femoral neck stress fracture, Private First Class M_ (Applicant) was re-evaluated and diagnosed by medical authorities as a treatment failure due to his unsuccessful rehabilitation. They concluded that he should be administratively separated.

011022:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] 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 20011120 with a general (under honorable conditions) 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 and equitable (C and D).

Issues 1 and 2. The Applicant’s diagnosis by a competent medical authority with a right femoral neck stress fracture formed the basis for his administrative separation. Separation for this reason is designated as convenience of the government due to condition not a physical or mental disability. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief to the narrative reason for separation is therefore denied.

The characterization of service for separation due to a condition not a physical or mental disability is that determined by the separation authority. The statements and documentation provided by the Applicant do not refute the presumption that his character of service was properly and equitably assigned. Relief denied.

 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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