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NAVY | DRB | 2004 Marine | MD04-00795
Original file (MD04-00795.rtf) Auto-classification: Denied


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


ex-PFC, USMC
Docket No. MD04-00795

Applicant’s Request
The application for discharge review was received on 20040414. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to ST PETERSBURG FL. The Applicant did not designate a representative on his DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008. 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 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. “AT MY DISCHARGE, I WAS TOLD THIS WAS A MEDICAL DISCHARGE AND MY RECORD REFLECTS NO MISCONDUCT ON MY PART. I HAD STRESS FRACTURES ON BOTH MY LEGS AND I WAS PLACED ON PROFILE WITH NO RUNNING FOR 90 DAYS. I DID NOT REALIZE TYPE OF DISCHARGE TILL I WAS OUT OF THE MARINE CORPS AND HOME.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
          Inactive: USMCR (J)               001026 - 010904  COG
Period of Service Under Review :
Date of Enlistment: 010905               Date of Discharge: 021007

 Length of Service (years, months, days):

         Active: 01 01 03
          Inactive: None
Age at Entry: 18                          Years Contracted: 5

 Education Level: 12                        AFQT: 64
Highest Rank: PFC                          MOS: 9900, Basic Marine

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.1 [Extracted from HqSptBn CO’s Ltr]      
Conduct: 3.9 [Extracted from HqSptBn CO’s Ltr]
Military Decorations: None

 Unit/Campaign/Service Awards: RMB
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 :

001024:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
020424:  Counseled for deficiencies in performance and conduct. [You were in violation of Article 86 by being UA from a duty section muster on 020420 at 2300. Your actions have shown a lack of dedication, commitment, and responsibility.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020717:  Counseled for deficiencies in performance and conduct. [Academic drop from the AS (A1) course of instruction, drop code 080-81.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020821:  Counseled for deficiencies in performance and conduct. [Your injury (proximal tibia stress fracture), which caused you to be dropped from training on 020821 form TITB. You are advised that your injury interferes with your effective performance of your duties and action should be taken to remedy this situation.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020827:  Medical evaluation at S.M.A.R.T. clinic:
          AXIS I: Shin splints and a healed tibial stress fracture (DNEPTE).
          After 180 days of light duty and rehabilitation with Sports Medicine, Applicant has not improved. Strongly recommend an administrative separation for a physical condition not a disability.
020924:  Camp Geiger Branch Medical Clinic: Applicant is qualified for separation.
020925:  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.
020925:  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.
020925:  Applicant’s voluntary statement.
020925:  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 physical condition (shin splints and a healed tibial stress fracture, DNEPTE), which is so severe that your ability to function effectively in the military environment is significantly impaired.

021003:  GCMCA [Commanding Officer, Headquarters and Support Battalion, School of Infantry] 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 20021007 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: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his “record reflects no misconduct,” his service record is marred by a negative page eleven counseling for unauthorized absence because he missed a duty section muster; thereby, substantiating his misconduct. It must be noted most Marines serve honorably and earn their honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

T here 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. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of post-service conduct to mitigate his misconduct while on active duty. 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 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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