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NAVY | DRB | 2004 Marine | MD04-00607
Original file (MD04-00607.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00607

Applicant’s Request
The application for discharge review was received on 20040224. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant designated the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001. 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

No issues were submitted by the Applicant.

Issues submitted by Applicant’s representative ( Disabled American Veterans):
1. “ Dear Chairperson:

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 evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized Discharge to that of Honorable.

The FSM served on active service from March 11, 2003 to October 22, 2003 at which time he was discharged due to physical disability, by reason of Convenience of the Government – Un-Characterized.

The FSM contends the current Un-Characterized discharge is improper because there is evidence of seven months of honorable service, sufficient to be awarded the National Defense Service Medal and qualify with a weapon. With no other negative reason for discharge except for the pre-existing disability.

As the representative, we tend to agree with the FSM in the respect that he served more than one hundred and sixty days of honorable service, and because of the length of service and no disciplinary actions the Marine Corp. is required to issue an Honorable Discharge in accordance with the Department of Defense Instruction.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, the FSM goes onto explain that the problem with his active duty were not derived from conduct, but from his disability.
As the representative, we ask that consideration be given to equitable relief, as 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. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
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)                020731 - 030310  COG

 Period of Service Under Review :
Date of Enlistment: 030311                        Date of Discharge: 031022

 Length of Service (years, months, days):

         Active: 00 07 12
         Inactive: None

 Age at Entry: 17        Parental consent         Years Contracted: 4

 Education Level: 12                                 AFQT: 44

 Highest Rank: PFC                                   MOS: 9971

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                                   Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, REB

 Days of Unauthorized Absence: None

*No marks found in service record.

 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 :

030625:  Medical evaluation at SMART Center:
          AXIS I: Left Ilio-Tibial Band Syndrome.

030701:  Medical Evaluation:
                  AXIS I: Left Patello-Femoral Syndrome.

 030807:  Counseled for deficiencies in performance and conduct. [Concerning your physical condition (left ilio-tibial band syndrome and subsequently left patello-femoral syndrome which interferes with your duties, specifically, the inability to participate in rigorous exercises, conditioning hikes, and field duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030820:  Applicant requested voluntary leave awaiting administrative separation.

 030903:  Applicant notified of intended recommendation for discharge with an uncharacterized by reason of convenience of the government for a condition not a disability.
030903:  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.

030903:  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 your being diagnosed with left ilio-tibal syndrome at MCRD on 030603 and at the SMART Center on 030625. You were subsequently diagnosed with left patello-femoral syndrome on 030701.

Undated:         GCMCA, CG, Marine Corps Base, Camp Pendleton, CA directed the Applicant's discharge with an uncharacterized by reason of condition not a disability.

030919:  Applicant directed to voluntary leave for an indefinite period while administrative separation is being reviewed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031022 with an uncharacterized 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 discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization. For the purposes of characterization of service or description of separation, the member’s status is determined by the date of notification as to the initiation of separation proceedings. The Applicant was notified of the intended entry-level separation on 20030903, which was 176 days into his first enlistment. Relief denied.

The Applicant’s representative stated “that he served more than one hundred and sixty days of honorable service, and because of the length of service and no disciplinary actions the Marine Corp. is required to issue an Honorable Discharge “. The Applicant was notified of the intended entry-level separation on 20030903. The Applicant was on 33 days of leave from 20030919 – 20031022 (date of discharge). The Applicant's service record did not contain any unusual circumstances to warrant a change of discharge to honorable. Relief denied.

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 [or] her 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      


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