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USMC | DRB | 2005_Marine | MD0500066
Original file (MD0500066.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD05-00066


Applicant’s Request
The application for discharge review was received on 20041006. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a hearing before the Board in the Washington National Capital Region. 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. The Applicant designated civilian counsel as the representative on the DD Form 293.

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 PHYSICAL OR MENTAL 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. “I have completed 3 full years of active duty service and was discharged from service as a result of a service related physical condition making me unfit for duty. I am unable to use my GI BILL benefits due to my current discharge type. The GI Bill requires a service member to have a Honorable Discharge in order to use the benefits. I was informed at the time of my discharge that the General Under Honorable Conditions discharge was the same as Honorable and would automatically upgrade in six months. This has not been the case.”

Applicant’s representative submitted no issues for consideration.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 215 dtd 980701(Member 4 and Member 1)
Applicant’s DD Form 214 (Member 4 and Member 1)
Commanding Officer’s ltr of 980604

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                940928 - 950626  COG

 Period of Service Under Review :
Date of Enlistment: 950627               Date of Discharge: 980626

 Length of Service (years, months, days):

         Active: 03 00 00
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rank: LCpl                         MOS: 2531

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (7)              Conduct: 4.4 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/ CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

 Chronological Listing of Significant Service Events :

970907:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty from 970827 to 970827. Article 92: Failure to obey a lawful order: Specification 1: On 970827, disobey a lawful order from SSgt V_.
 Specification 2: On 970828, disobey a lawful order from SSgt V_.
Awarded forfeiture of $285.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
 970910:  Counseled for deficiencies in performance and conduct. [Violation of Articles 86 and 92 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971210:  Counseled for deficiencies in performance and conduct. [Violation of Article 86.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980105:  Counseled for deficiency. [Plantar fasciitis.] Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

980421:  Reevaluated today for plantar fasciitis… plantar fasciitis has not improved. Perhaps an admin discharge should be considered.

980429:  NJP for violation of UCMJ, Article 86: UA from appointed place of duty on 980407.
Awarded forfeiture of $265.00 per month for 1 month, restriction and extra duties for 14 days. Not appealed.
980429:  Counseled for deficiencies in performance and conduct. [Violation of Article 86.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980604:  Applicant notified of intended recommendation for discharge by reason of convenience of the government due to a physical condition not a disability with the least favorable characterization possible of general (under honorable conditions).

980604:  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.
980604:  Commanding Officer recommended an honorable discharge by reason of convenience of the government for a physical condition not a disability. The factual basis for this recommendation was a diagnosis of plantar fasciitis/pes plantus protocol.

980618:  SJA review determined the case sufficient in law and fact.

980623:  GCMCA [Commander, MCBH] directed the Applicant's general (under honorable conditions) discharge by reason of physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980626 with a general (under honorable conditions) characterization by reason of convenience of the government due to condition not a physical or mental 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. 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 three retention warnings and two nonjudicial punishment proceedings for violations of Articles 86 and 92 of the UCMJ. 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. Relief is not warranted.

The Applicant states that he was told that after six months his discharge would be upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval 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 or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 P1900.16E, effective 18 Aug 95 until 31 Aug 2001), 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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