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NAVY | DRB | 2004 Marine | MD04-00168
Original file (MD04-00168.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00168

Applicant’s Request
The application for discharge review was received on 20031029. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “RE-3G.” The Applicant requests a documentary record review. The Applicant designated civilian counsel as his representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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 reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

 .


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative ( CIVILIAN COUNSEL):
Issue 1: “In summary, applicant was separated pursuant to MARCORPSEPMAN Para. 6203.2, Condition Not a Disability with a separation code of JFV1, Involuntary discharge – Condition which interferes with the performance of duty (no board). While attending SOI, applicant had “stress fractures” which would not heal. He was sent home pending separation. He has no adverse material in his SRB. He has citations which were not reflected in DD214 Item 13 and not considered for his characterization. Applicant contends that MARCORPSMAN 1004.2.a.(2) is “otherwise so meritorious” and per the subsequent reference therein to MARCORPSEPMAN 1004.3, has in excess of the stated minimum proficiency and conduct marks under (a) thereof; the reason under (b) thereof is innocuous and beyond SNM’s ability to have prevented or corrected (shin splints); analogous to (b), (c) involved no “behavior” attributable to SNM; under (d) thereof, reference para. 1004.4, applicant’s “conduct, actions, or performance during that enlistment” has exploited the opportunities to serve Corps and Country given his situation, status and station and the applicable period of service (see enclosed certificates of commendation); (e) thereof evidences a youth beyond the “entry level separation” period but debilitated by medical/physical exigencies beyond his control yet contributing beyond expectations (see enclosed Certificates of Appreciati0on which were NOT reflected in DD214 Item 13 and apparently not previously considered when determining characterization); and (f) thereof contributing of himself on behalf of the Marine Corps to the local community at great credit to himself and the United States Naval service.”

Issue 2: “A review of applicant’s DD214 evidences two errors: (1) Item 13 fails to credit applicant with two, separate Certificates of Appreciation. Applicant contends the separation authority improperly failed to consider the totality of applicant’s service by omitting these citations when making his determination of characterization.

(2) In addition to the evidence presented in the enclosed attachments, applicant asserts his “RE” code is incorrect. Per BUPERSINST 1900.8, Enclosure (2), page 14, his code must be either “RE-3G” (Condition (not physical disability) interfering with performance of duty) OR “RE-4” (Not eligible for reenlistment without prior approval of CHAVPERS.) The “RE” code assigned to SNM is “RE-3P” (Physical disability (includes discharge and transfer to TDRL)). The “RE-3P” code is inconsistent with the specific finding under applicant’s DD214, Item 28 (Narrative Reason For Separation) “CONDITION NOT A DISABILITY”. See enclosed excerpts from BUPERSINST 1900.8.

Given that applicant was separated under Para 6203.2, his separation is a “Chapter 6” separation as that term is defined and referenced in Para. 1004 of MCO P1900.16F. Characterization of service must therefore be in compliance with the guidelines of Para. 1004 and Tables 1-1 and 6-1. Applicant’s service was brief due to his condition, a condition clearly brought about by his service. But for his condition, applicant would have completed his service obligation. Despite his condition, applicant desired to complete his service obligation. During his brief service, applicant twice distinguished himself meritoriously. Given the brevity of his service and its attendant limitations on opportunities to excel, applicant’s service should receive and HONORABLE characterization. To do less inequitably punishes applicant for a condition beyond his control to prevent or correct which itself resulted from said service. The totality of the circumstances and fundamental fairness dictate he receive an HONORABLE characterization of service.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Page from MARCORSEPMAN
Enclosure (2) BUPERSINST 1900.8, 28 Jun 1993 (1 page)
Enclosure (3) BUPERSINST 1900.8, 28 Jun 1993 (1 page)
MARCORPSSEPMAN, MCO P1900.16F (13 pages)
Certificate of Appreciation, dtd 15 October 2002
Certificate of Appreciation, dtd 30 September 2002
Applicant’s Health Record (28 Pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              000000 - 000000  HON
         Inactive: USMCR (J)               020320 - 020414  COG

 Period of Service Under Review :
Date of Enlistment: 020415               Date of Discharge: 030117

 Length of Service (years, months, days):

         Active: 00 09 03
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (1)              Conduct: 4.5 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, CertApp (x2)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/ CONDITION NOT A DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

 Chronological Listing of Significant Service Events :

020717   Applicant educated on stress fracture protocol, acknowledged an understanding of that protocol and his responsibility to follow said protocol.

020729:  Counseled for on SF600 for not adhering to treatment plan (ramp-up schedule). Advised not doing so might not be “tolerated” and would lead having to be retreated.


021023:  Counseled for deficiencies in performance and conduct. [Physical conditions (tibial stress fracture) which interferes with duties.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021209:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of convenience of the government for a condition not a disability.
021209:  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.

021209:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of convenience of the government for a condition not a disability. The factual basis for this recommendation was Applicant’s numerous medical complaints, prolonged periods of light duty and diagnosis as a treatment failure.

030107:  GCMCA [Commanding General, Marine Corps Base, Camp Pendleton, CA] directed the Applicant's discharge with a general (under honorable conditions) by reason of condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030117 with a general (under honorable conditions) by reason of convenience of the government due to condition not a 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: After a very careful review of the record, the Applicant’s issues as annotated on his DD Form 293 and the supporting documentation submitted by the Applicant’s representative, the convening authority has correctly characterized the Applicant’s service by applying “note 2” in conjunction with the Applicant being counseled for not follow the treatment protocol, which he acknowledged a full understanding of and his responsibility to follow on 020717. Changing the Narrative Reason for Separation would be inappropriate. Relief denied.

Issue 2: The Board agrees with the Applicant’s counsel regarding what appears to be an erroneous “RE” code. If queried for a recommendation we would recommend an “RE-4” to be assigned; however, 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. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 P1900.16F, effective
01 September 2001 and Present), 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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