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NAVY | DRB | 2004 Marine | MD04-00863
Original file (MD04-00863.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00863

Applicant’s Request
The application for discharge review was received on 20040429. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015. 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:

“1. In May of 2002 I was ELS’ed for Medical Reasons. During my discharge I was told that my discharge would be characterized as General if I apply for a job.
I applied to be a correctional office for the state of New Mexico. I passed passed everything but the only thing that disqualified was my DD 214. The said because it said uncharacterized I could not start training. ”

Additional issues submitted by Applicant’s representative, the American Legion:
“2. In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the following statement in supplement to this Applicant’s petition.

Review of the service record reveals that this former member injured his left shoulder by falling with a full pack. He was diagnosed with left scopular winging and recommended for administrative separation because the condition was unlikely to change. Following due process notifications, he was discharged with an Uncharacterized - Entry Level Separation due to a condition not a disability as authorized by MARCORSEPMAN, Par. 6203.2.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge changed to General because someone told him that it would be. He has not submitted any additional documentation for consideration.

Following careful review of the evidentiary record, we opine that the issues raised on DD Form 293 amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review. Accordingly, we rest this case on the evidence of record.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). “



Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                010328 - 011112  COG

 Period of Service Under Review :
Date of Enlistment: 011113               Date of Discharge: 020517

 Length of Service (years, months, days):

         Active: 00 06 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 58

 Highest Rank: Pvt                          MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NOB*                 Conduct: NOB*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

NOB* (Not observed)
 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 :

020225:  Applicant reports to Branch Medical Clinic (BMC) MCRD San Diego with left shoulder pain. Diagnosis is swinging scapular, left shoulder. Applicant assigned to physical therapy with follow-up medical appointment in 7 days.

020304:  Applicant treated at BMC MCRD SD for subscapular creptis. Follow-up appointment in 2 weeks.

020313:  Applicant has follow-up appointment at BMC MCRD SD. Treatment provided.

020318:  Applicant has follow-up appointment at BMC MCRD SD. Patient advised that “there is some improvement” and that “he only has 1 week remaining of training.” Applicant “ OK to do pull-ups but otherwise limit upper body.”

020401:  Naval Medical Clinic San Diego refers Applicant to Neurology exam to evaluate for long thoracic, suprascular, and axillary nerve compromise. Applicant placed on serratus strengthening exercises.

020408:  Applicant has follow-up appointment at BMC MCRD SD. Applicant examined, instructed on strength and range of movement exercises. Follow-up appointment in 2 weeks.

020409:          Counseled for deficiencies: Failure to achieve the minimum three pull-ups required to pass the PFT in order to graduate from recruit training. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020415:  Naval Medical Clinic San Diego refers Applicant to Ortho exam. Reason for referral: “left scapular dysfunction, including dyssemtric movement, crepitus (snapping), and winging x 9 weeks, w/o improvement.” Provisional diagnosis: left scapular dysfunction with winging.

020425:  Applicant undergoes Needle EMG Examination at NMC San Diego Neurology Department. Conclusion: This is a normal study. There is no electrophysiologic evidence suggestive of involvement of the left axillary, long thoracic nerve or suprascapular nerve.

020430:  BMC MCRD SD follow-up examination. Diagnosis: “left scapular winging, biomechanical secondary to serratus muscle weakness, general upper body weakness.” Disposition: “referred for administrative separation; member does not meet the minimum standards for enlistment as setforth in MANMED Section III, and MILSPERSMAN 362080 at the time of his entry into training; member has not incurred injury and/or has not aggravated pre-existing defects by active military service; member’s present condition is considered “not physically qualified” in accordance with the physical unfitness by reason of disability, as defined in Appendix (A) of SECNAVINST 1850-4C (Disability Evaluation Manual); SNM’s condition is unlikely to change if retained.”

020430:  At the BMC MCRD SD, Applicant acknowledges the diagnosis: “The physical qualification validates SNM for separation.”
020506:          Counseled for deficiencies: Failure to achieve the minimum three pull-ups required to pass the PFT in order to graduate from recruit training. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020509:  Applicant notified of intended recommendation for entry level discharge (uncharacterized) due to convenience of the government.
020510:  Commanding officer recommended entry level separation. The factual basis for this recommendation was: “ SNR has been evaluated and diagnosed by BMC with left scapular winging, due to muscular weakness and under development. SNR states that he has no history of this condition or related condition prior to MCRD. ELS/COG.”

020513:          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.

020513:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020515:  GCMCA, CG, MCRD San Diego, CA, directed the Applicant's discharge with an uncharacterized (entry level) convenience of the government.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020517 with uncharacterized service 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. The Applicant states that he was “told that my discharge would be characterized as General if I apply for a job.” The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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. On the 177 th day of his initial enlistment, the Applicant was notified of and acknowledged the CO’s recommendation to administratively discharge him with a discharge of Uncharacterized/Convenience of the Government. The Applicant's service record did not contain any unusual circumstances during his less than seven months in the military to warrant a change of discharge to "honorable."

Issue 2. The Applicant’s representative, the American Legion, states “this Applicant is requesting that his discharge be changed to General because someone told him it would be”. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The record contains no evidence of any wrongdoing by anyone in the discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. 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 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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