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NAVY | DRB | 2004 Marine | MD04-01410
Original file (MD04-01410.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-01410

Applicant’s Request
The application for discharge review was received on 20040909. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the Application, the Applicant obtained representation from Veterans of Foreign Wars.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050304. 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. “Received General Under Honorable because military thought medical condition pre-existed service. This is not true and evidence attached to establish this.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 2. “ Propriety or Equity Issue(s): Medical condition adversely affected performance of duty.
Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant is asking that the Board upgrade his discharge to Honorable. He was suffering from an ulcerated leg condition at the time of his Unauthorized Absence and this medical disability adversely affected his performance of duty.

The Veterans of Foreign Wars’ 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 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

 This case is now respectfully submitted for deliberation and disposition. ”

Documentation
 In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s DD Form 293 dtd 040730
Medical records from Southwest Medical Center (7 pages)
Medical page from V_ R. V_, M.D. (1 page)
Ltr from Dept. Veterans Affairs, State of TN dtd 041001
Ltr from Applicant dtd 041209
Two pages from Applicant’s medical record
19 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)                021018 - 021215  COG

 Period of Service Under Review :
Date of Enlistment: 021216               Date of Discharge: 031015

 Length of Service (years, months, days):

         Active: 00 09 01                  [Excludes lost time]
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 58

 Highest Rank: PFC                          MOS: 9900

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (2)              Conduct: 3.6 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 30

 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 :

030522:  Counseled for deficiencies. [Condition not a disability] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030713:  To unauthorized absence, 0600.

030811:  From unauthorized absence, 1330.

 030818:  Counseled for deficiencies in performance and conduct. [Unauthorized Absence] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030819:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 030713-030811.
 Awarded forfeiture of $575.00 per month for 2 months, restriction for 60 days, reduction to E-1. Not appealed.
030926:  Commanding Officer, Naval Hospital, Camp Lejeune recommended the Applicant’s administrative separation. The Applicant has a history Bilateral 3 rd Metatarsal Stress Fractures, (Did Not Exist Prior to Entry) and Meatarsalgia (Did Not Exist Prior to Entry). Patient has been on light duty and physical therapy greater than 60 days with no significant improvement, we feel he has maximized treatment. [Extracted from document provided by applicant.]
031006:  Applicant notified of intended recommendation for discharge with a by reason of convenience of the government for a condition not a disability. Applicant notified the least favorable character of service as general (under honorable conditions). [Extracted from document provided by applicant.]

031006:  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. [Extracted from document provided by applicant.]

031006:  Commanding officer recommended discharge with a general (under honorable conditions) character of service by reason of convenience of the government for a condition not a disability. The factual basis for this recommendation was the [Applicant’s] physical condition [history bilateral 3 rd metatarsal stress fractures and meatarsalgia], which interferes with his effective performance of duty. [Extracted from document provided by applicant.]

031009:  GCMCA [Commanding Officer, School of Infantry] directed the Applicant's general (under honorable conditions) discharge by reason of condition not a disability. [Extracted from document provided by applicant.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031015 with a general (under honorable conditions) character of 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 contends that he received a general (under honorable conditions) discharge because the “military thought medical condition pre-existed service.” A general discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 86 of the UCMJ for 30 days in unauthorized absence, a serious offense. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service. Further, o n 20030926 competent medical authority recommended the Applicant’s administrative separation due to a condition not a disability, specifically, Bilateral 3 rd Metatarsal Stress Fractures, (Did Not Exist Prior to Entry) and Meatarsalgia (Did Not Exist Prior to Entry). Relief is not warranted.

Issue 2. The Applicant contends through counsel that he “ was suffering from an ulcerated leg condition at the time of his Unauthorized Absence and this medical disability adversely affected his performance of duty.” While he may feel that his medical condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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. 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “ http://Boards.law.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:

                  Secretary of the Navy    Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023



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