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NAVY | DRB | 2004 Marine | MD04-00893
Original file (MD04-00893.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00893

Applicant’s Request
The application for discharge review was received on 20040505. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant designated the CT Department of Veterans Affairs as his representative on the DD Form 293.

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: 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, attached to the application:

 “ Dear DRB,

 The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.
1. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a less than honorable discharge.

2. My average conduct /behavior were good as indicated by a good conduct medal dated 4-25-2003.

3. The service did not properly follow the characterization directive in this case. The reason for separation was “reason of convenience of the government due to a physical condition not a disability” and that according to DOD directive 1332.14 dated 12-21-1993 sections E3.Al.l.3. Convenience of the Government, the correct characterization is Honorable as indicated in the below subsections of the directive.
 E3.Al.1.3.1. Basis. A member may be separated for convenience of the government for the reasons set forth in subsection E3.A1.1.3.4.
E3.A1.1.3.4.8. Other designated physical or mental conditions.
E3.A1.1.3.4.8.1. The Secretary concerned may authorize separation on the basis of other designated physical or mental conditions, not amounting to Disability (section E3.Al.1.4., below), that potentially interfere with assignment to or performance of duty under the guidance set forth in section E3.A2.1.1. of Part 2.
E3.A1.1.3.2. Characterization or description. Honorable, unless:
E3.Al.1.3.2.2. Characterization of service as General (under honorable conditions) is warranted under section E3.A2.1.3. of Part 2.
E3.A2.1.3.2.1.3. The reasons for separation, including the specific circumstances that form the basis for the separation, shall be considered on the issue of characterization. As a general matter, characterization will be based upon a pattern of behavior rather than an isolated incident...
 E3.A2.l.3.2.l.4. Due consideration shall be given to the member’s age, length of service, grade, aptitude, physical and mental condition, and the standards of acceptable conduct and performance of duty.
E3.A2.1.3.2.2. Types of characterization:
E3.A2.1.3.2.2.1. Honorable. The Honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate...
E3.A2.1.3.2.2.2. General (under honorable conditions). If a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as General (under honorable conditions) is warranted when significant negative aspects of the member’s conduct or performance of duty outweigh positive aspects of the member’s military conduct or performance of duty outweigh positive aspects of the record.

4. My record of NJP indicates only a single isolated and minor offense. The only negative aspect of my service was a single NIP for UA of 3 weeks during which I sought medical attention from my civilian doctors. Upon obtaining medical care I returned to duty voluntarily. The reason I went UA was that I became extremely depressed over my inability to perform to my potential in training due to severe pain in both my back and wrist. I worried about how my diminished performance may expose my fellow Marines and myself to danger should we be called into combat. My concern grew to the point where I felt compelled to seek medical attention and advice. I chose not to report these medical problems to my superiors because I feared that I would be sent to a medical rehab platoon (MRP), as was the case when I first reported my medical history at Parris Island. The experience from MRP on Parris Island was horrible. Faced with severe pain and my unwillingness to be sent to an MRP, I became very depressed. I felt that I had no other option but to seek medical attention at home with my original medical doctors. I was not expecting to receive extended leave that would afford me the opportunity to return home in the near future. In view of this, and my depressed state I returned home under UA status on March 26,2003. I sought medical attention and confirmed my diminished capacity to serve in the military. Attached are two letters from my doctors that support this claim. I voluntarily returned to Camp Geiger on April 14,2003 and presented these letters to the commanding officer. I received Non-Judicial Punishment (NJP) for 60 days with no liberty and lost ½ of my pay for 2-months. I was not given medical treatment of any kind upon return.

 5. I had an MOS of infantry and was not allowed to change my MOS to a position that would have not made my physical condition worse in order to continue my service.

6. I have been a good citizen since my discharge. I plan to attend college full-time this fall in order to obtain a 4-year college degree.

I feel that the above reasons and explanations show a dedicated concerned Marine who if not for a physical hardship would have continued to service honorably in the corp. My single isolated act of misconduct was not directed toward the corps or my superiors but was an act of desperation to seek appropriate medical advice that ultimately proved to be the basis for my separation from active duty. I was sadden to leave the corps which was a life long dream of mine to join but my medical health was more important to the balance of my life. The fact that I was given a General discharge was very disappointing to me and I am asking that you correct this error of characterization.

Sincerely,
(Signed)
S_ P. H_ ( Applicant )

 Attachments ”

Issues submitted by Applicant’s counsel/representative (CT Department of Veterans Affairs) :

7. “ Dear Sirs:

Enclosed you will find DD Form 293 for the above captioned veteran requesting a review of his discharge from the U.S.M.C. and a request to change the character of service to Honorable. A copy of the veteran ’ s DD214 is included along with the statements listed in item & of Form 293.

Your consideration of this request is greatly appreciated. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference from Applicant’s father, dated July 10, 2003 (2 pages)
Letter from Plastic Reconstructive Surgery, dated April 1, 2003 (2 pages)
Letter from Orthopaedic Surgery, dated April 3, 2003
Cover letter from Applicant’s counsel, dated July 23, 2003 (2)
Applicant’s DD Form 214
Letter from Applicant, dated April 28, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               020209 - 021006  COG

 Period of Service Under Review :
Date of Enlistment: 021007               Date of Discharge: 030606

 Length of Service (years, months, days):

         Active: 00 08 00         (Does not exclude lost time.)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 61

 Highest Rank: Pvt                          MOS: 9900, Basic Marine

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (3)              Conduct: 3.9 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: MRB, NDSM

 Days of Unauthorized Absence: (23) 20030323-20030415

 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 :

021008:  Medical Record: A/P: 1 Heart murmur – probably benign. Request echo + CMR’s. 2. H/- L5 fracture – request CMR’s. Drop to MRP. No duty. Follow up when records are available and/or MRP Day.

021010:  Murmur Evaluation: A: Benign murmur. P: No exercise until cleared. Echocardiogram.

030323:  Applicant to unauthorized absence 1800, 030323.

030416:  Applicant from unauthorized absence 1100, 030416 (23 days)
030422:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from 1800, 030323 until 1100, 030416.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030425:  NJP for violation of UCMJ, Article 86:
 Specification: Unauthorized absence from 1800, 030323 until 1100, 030416.
Awarded forfeiture of $575.00 per month for 2 months, restriction for 60 days. Not appealed.
030505:  Counseled for deficiencies in performance and conduct. [Diagnosed physical condition not a disability, specifically (mechanical lower back pain) and any resultant or aggravated condition which interferes with the effective performance of your duties.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030528:  Applicant found qualified for separation.

030516:  Medical evaluation by Head, S.M.A.R.T. Clinic, Camp Geiger: 19-year-old male with a (pre)service history of mechanical lower back pain due to history of L5 pars fracture (EPTE) and wrist pain and weakness secondary to release for Carparl Tunnel Syndrome (EPTE).
         Applicant has been on light duty and physical therapy greater than 15 days with no improvement, we feel he has maximized treatment. Strongly recommend administrative separation for a physical condition not a disability. [Conditions not mentioned on Applicant ’ s Enlistment Report of Medical History]
030521:  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.
030521:  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.

030521:  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 physical condition (history of mechanical lower back pain due to history of 15 pars fracture and wrist pain and weakness secondary to release for carpal tunnel syndrome).

030603:  GCMCA [Commanding Officer, School of Infantry, Camp Lejeune, NC] 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 20030606 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: This issue does not serve to provide a foundation upon which the Board can grant relief in this case. For the Applicant’s edification, clemency is an act of leniency that reduces the severity of punishment received as a result of a court-martial. The Applicant was not separated from the service as a result of a court-martial. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Issue 2: Again for the Applicant’s edification, in order to receive a good conduct medal, which the Applicant is not qualified to receive, a Marine must have “3 years of continuous active service.” The Applicant was only in the Marine Corps for seven months and six days, which is well short of the time requirement for receiving the Good Conduct Medal. Additionally, the record does not support the Applicant’s contention his “ average conduct /behavior were good. ” The record shows the Applicant’s in service proficiency and conduct marks were 3.9 and 3.9 respectively. These marks are indicative of a “ Below Average ” Marine. Finally, the date in the remarks section of the Applicant ’ s DD Form 214 represents the beginning date of the 3-year time requirement needed to qualify for a Good conduct Medal. The Applicant should note his beginning date was reset the day after his nonjudicial punishment for being in an unauthorized absence status. As with the issue above, this issue does not serve to provide a foundation upon which the Board can grant relief.

Issue 3, 4 & 7: 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. The Board found that the Applicant’s age, education level, and test scores qualified him for enlistment. While he may feel his immaturity and youth were factors that contributed to his actions, the record clearly reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The NDRB recognizes that serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. It must be noted most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a characterization than is due. While the NDRB respects the fact that the Applicant tried, his service is equitably characterized. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s service record is marred by award of non-judicial punishment (NJP) for being in an unauthorized absence status for 23 days . The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate. Relief denied.

Issue 5: The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents the Applicant’s medical conditions, which existed prior to his entering the Marine Corps, and which he failed to annotate on his Record of Medical History at enlistment as the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief denied.

Issue 6: 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 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 good character and 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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