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NAVY | DRB | 2004 Marine | MD04-00201
Original file (MD04-00201.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00201

Applicant’s Request
The application for discharge review was received on 20031113. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not designate a 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 of the discharge shall not change. The discharge shall remain: UNCHARACTERIZED/CONDITION NOT A DISABILITY, authority: MARCORSEPMAN Par. 6203.2.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

Issue 1: “I am requesting that my discharge be upgraded to Honorable because of events that occurred while on active duty. Before being discharged from SOI training command I had to appear before the base commander, a colonel, my CO and Seargeant told me that I had been given an honorable discharge by the base commander. Then when the DD214 arrives in the mail, is said uncharacterized. Also, I have enclosed an LES statement to show that I contributed to the MGIB. My DD 214 does not show that I contributed to the fund. I also would like my DD 214 to show that the National Defense ribbon was authorized. It was policy that all Marines being discharged from SOI had to see the colonel first, they told me that I was to keep all of my uniforms and issued gear because the CO had awarded me an honorable discharge.”

 Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member – 4)
Copy of DD Form 214 (Member – 1)
LES (Apr 2002)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None                       HON
         Inactive: USMCR (J)               010622 - 011104  COG

 Period of Service Under Review :
Date of Enlistment: 011105               Date of Discharge: 020806

 Length of Service (years, months, days):

         Active: 00 09 02
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 65

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (2)              Conduct: 4.2 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNCHARACTERIZED/ CONDITION NOT A DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

 Chronological Listing of Significant Service Events :

020313:  Counseled for deficiencies in performance and conduct. [Diagnosed physical condition not a disability (asthma, DNEPTE) and any resultant or aggravated condition which may interfere with the effective performance of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020501:  Medical evaluation at the Camp Geiger Branch Medical clinic confirmed the applicant’s diagnosis of asthma and his unreported history of Bronchitis Pneumonia. His preexisting condition may have contributed to his current illness.
020502:  Applicant notified of intended recommendation for discharge with an uncharacterized discharge by reason of convenience of the government for a condition not a disability.
020502:  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.
020717:  Commanding officer recommended discharge with an uncharacterized discharge by reason of convenience of the government for a condition not a disability. The factual basis for this recommendation was the Applicant’s diagnosis of asthma, a disqualifying medical condition.

020731:  GCMCA [Commanding General, Marine Corps Base, Camp Lejeune] directed the Applicant's discharge with an uncharacterized discharge by reason of condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020806 with an uncharacterized discharge 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: By regulation, members who are processed for discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” unless there were unusual circumstances regarding performance or conduct, which would merit an “honorable” characterization. The Applicant’s service record did not contain any unusual circumstances during his time in the military, which would warrant a change of discharge. With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization.

 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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      



A. Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 01 Sep 2001 until Present), paragraph 6203, CONVENIENCE OF THE GOVERNMENT , states:

A Marine may be separated for the Convenience of the Government for the reasons set forth below. Characterize service as honorable, general (under honorable conditions), or uncharacterized under the rules in paragraph 1004 and table 6-1.

1. Parenthood . Marines are Marines 24 hours per day, 7 days per week. Specific duties, assignments, or circumstances, not to mention the fundamental mission of the Marine Corps, require all Marines, regardless of marital status, to be responsive to command and Marine Corps needs. When a Marine's parental responsibilities result in repeated absenteeism, interfere with a Marine's effective performance of duty, or preclude present or future availability for worldwide assignment, separation is required unless the Marine can resolve the conflict to the commanding officer's satisfaction. Before initiating separation action, commanding officers must formally counsel the Marine per paragraph 6105 concerning specific deficiencies and give the Marine an opportunity to overcome the noted deficiencies. When the performance of duty still does not conform to commonly acceptable standards, follow the procedures in section 3.

2. Physical Condition Not a Disability

a. Whenever a Marine's performance deteriorates or has an adverse effect on others in the unit, commanding officers and subordinate leaders will try to determine the cause. When the command suspects a physical condition interferes with the Marine's effective performance of duty, the Marine should be referred to the appropriate medical authority. If examination by a medical officer confirms that the Marine is suffering from a physical condition apparently beyond the individual's control and indicates that the condition is not a disability, initiate separation proceedings per paragraph 6303 or 6304. Such conditions may include the following:

(1) Obesity . Separation under this basis requires certification by a medical officer or medical board report that the Marine's overweight condition is due to pathological factors, not of a temporary nature, and apparently beyond the Marine's control. See MCO 6100.10B.

(2) Bed-wetting (enuresis).

(3) Sleepwalking.

(4) Chronic air sickness.

(5) Chronic motion sickness.

(6) Pseudofolliculitis Barbae . Refer to MCO 6310.1B, Pseudofolliculitis Barbae, for details or treatment required prior to initiation of separation action.

(7) Allergy . This includes, but is not limited to, allergy to clothing, boots, bedding, and bee stings or illness such as asthma and hay fever.

(8) Disqualifying Height . Separation on this basis is appropriate when, after a proper enlistment, a Marine cannot be assigned duties appropriate to grade and MOS due to increased height. Before separation, the commander should investigate reassignment options for the Marine.

(9) Any additional physical condition which interferes with duty, as determined by the commanding officer and medical officer, that is not considered a physical disability.

b. Refusal of Medical Treatment . A Marine may be separated for refusing medical treatment and that refusal interferes with duty. The commander must determine if the refusal is “reasonable” or “unreasonable” and warrants separation based upon the situation and the following considerations.

(1) Navy Medical Publication P-117, the Manual of the Medical Department (MANMED), article 18-22, states that medical, dental, and surgical treatment will not be performed on a mentally competent member who does not consent to the recommended procedure. When a member refuses medical treatment a medical evaluation board must be convened per the MANMED article and the results forwarded to the Physical Evaluation Board (PEB). See chapter 8 regarding the medical board and PEB process. The PEB will make a determination of “reasonable” or “unreasonable” refusal of medical treatment according to SECNAVINST 1850.4D, paragraph 3413. A medical evaluation board and PEB action are necessary because a determination of unreasonable refusal and intentional misconduct/willful neglect will result in denial of Department of Veterans Affairs and Social Security Administrative medical treatment for the member in the future.

(2) If the refusal of medical treatment is determined to be reasonable, the member may still be separated at the commander’s discretion per this Manual. If unsatisfactory performance of duty or misconduct are not considerations, separation, for physical condition not a disability, may be appropriate with the assignment of reenlistment codes RE-3P or RE-3C.

(3) If the PEB determines that the refusal of medical treatment was “unreasonable” or provides a finding of intentional misconduct/willful neglect, the commander may consider the following:

(a) Administrative separation for unsatisfactory performance per paragraph 6206 or misconduct per paragraph 6210.

(b) Administrative reduction . See MCO P1400.32C regarding nonpunitive reductions relating to professional incompetence and competency review boards.

(c) Characterization of Service . If a finding of intentional misconduct/willful neglect or other negative aspects of a Marine’s performance outweigh positive aspects of performance, to include proficiency and conduct average markings, and administrative separation is warranted, the least favorable characterization of service is general under honorable conditions.

(4) Refusing inoculations . Service members are required to submit to required immunizations according to Navy Regulations, article 1144. The medical evaluation board and PEB procedures described in paragraph 6203.2.b(1) are not required for members refusing inoculations. Disciplinary action and separation for orders violations may be appropriate based upon the commander’s decision.

c. Separation processing may not be initiated until the Marine has been counseled and allowed an opportunity to correct the deficiency per paragraph 6105. If a member is separated for “unreasonable” refusal of medical treatment, the following items must be included as part of the notification requirements of paragraph 6303:

(1) A reenlistment code of RE-4, not recommended for reenlistment, will be assigned and the member will be discharged and not transferred or eligible for service in the IRR.

(2) A finding of intentional misconduct/willful neglect requires the following notifications:

(a) Assignment of Separation code _______ (Basis determined).

(b) The member is not disabled and the condition did not occur in the line of duty.

(c) The Department of Veteran Affairs and the Social Security Administration may deny future medical benefits for this condition.

3. Personality Disorder

 a. Basis for processing . Separation under this paragraph is authorized only if, due to personality disorder, the Marine’s ability to function effectively in the military environment is significantly impaired and if no other basis for separation applies. For example, if separation can be based on another basis, including another basis under Convenience of the Government, misconduct, or unsatisfactory performance, use one of those bases in spite of misconduct, or unsatisfactory performance, use one of those bases in spite of the existence of personality disorder. Initiate separation proceedings per paragraph 6303 or 6304 as appropriate.

b. Documentation . Two forms are required in all cases.

(1) Medical . Separation under this paragraph is authorized only if a diagnosis by a psychiatrist or psychologist concludes, under Article 15-23 of the MANMED, that the disorder is so severe that the Maine’s ability to function effectively in the military environment is significantly impaired. Personality disorders are described in Axis II of the multiaxial classification in the Diagnostic and Statistical Manual (DSM-IV) of Mental Disorders. Commanders must comply with SECNAVINST 6320.24A and DoD Directive 6409.1 when referring a Marine to a mental health evaluation.
(2) Nonmedical . Written nonmedical evidence must be submitted to show specific examples of how the Marine is unable to function in the Marine Corps. These can be counseling entries on page 11 of the SRB or statements from witnesses.

c. Counseling . Before initiating separation, the command must have counseled the Marine in accordance with paragraph 6105; given the Marine a reasonable opportunity to correct deficiencies; and have documentation of failure to correct those deficiencies. However, such counseling is not required if a psychiatrist or psychologist determines that the Marine is an immediate danger to himself or others.

4. Action in lieu of approved punitive discharge . A member may be separated if placed on appellate leave pursuant to 10 U.S.C. 706 and whose punitive discharge is set aside, suspended, remitted, or disapproved during the review process. In this case, separation processing must be based upon the applicable provision of this chapter and may proceed without the member being present. The member, however, must have been notified of the separation processing prior to beginning appellate leave, or be afforded the rights under paragraph 6303 or 6304, as appropriate, and either waive those rights or fail to respond within 30 days of receipt of notification of separation proceedings. Further, the characterization limitations of paragraph 6203 do not apply and characterization will be based upon the guideline contained in paragraph 1004.

5. Disenrolled Involuntarily from Officer Candidate Program . A member may be separated after being involuntarily disenrolled from an officer candidate program under conditions in which the candidate did not incur, or does not have, any remaining service obligation. (For voluntary disenrollment, see paragraph 6411.)

6. Failure or Disenrollment From Lateral School Seat Assignment . A member who reenlisted under MCO 1200.5J, Lateral Move Program, may be separated for failure to comply with an express condition of enlistment/reenlistment; e.g., after failing, or being voluntarily or involuntarily disenrolled from, an MOS school/OJT under conditions not resulting in service obligation to the member.
OPTIONAL

X. Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 Sep 2001), Table 6-1, Guide for Characterization of Service, states that characterization of service for a Marine separated under the provisions of paragraph 6203, convenience of the government is either honorable or general (under honorable conditions) as determined by the Marine's service record unless the Marine is in an entry level status. Service will be uncharacterized for a Marine in an entry-level status.

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