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USMC | DRB | 2005_Marine | MD0500885
Original file (MD0500885.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCPL, USMC
Docket No. MD05-00885

Applicant’s Request
The application for discharge review was received on 20050426. The Applicant requests the Discharge 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case an 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 change. The discharge shall change to: HONORABLE by reason of convenience of the government due to condition not a disability .


 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am a disable veteran w/ a General Under Honorable conditions. It is hard to get a job w/ type of discharge that is not Honorable. I served my country as best as possible and I always did my job w/ 100% effort. There is no reason that I should not deserve an Honorable Discharge. I was told that because I had a physical condition and not a disability, that I would receive a General Under Honorable. Yet, When I filed a claim to the Veteran Affairs that disabled me at 50%. I talked to a military lawyer and she said that there was no reason why I got a General Under Honorable Condition. She stated that I appeal it and request an Honorable Discharge.”


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4 and Member 1)
32 Pages from Applicant’s medical record
Performance development plan for performance ending July 15, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20020911 – 20021006      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20021007             Date of Discharge: 20040715

 Length of Service (years, months, days):

 Active: 01 09 09
         Inactive: None

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 62

 Highest Rank: LCpl                                  MOS: 0351

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3*                 Conduct: 4.3*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214) : National Defense Service Medal
*Extracted from Personnel Officer, Division Personal ltr, undated

 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 :
040122:  Counseling: Advised of deficiency (leo scoliosis), sources of assistance provided and advised being processed for administrative discharge action.
040528:  Counseling: Advised of deficiency (physical condition), sources of assistance provided and advised being processed for administrative discharge action.
040415:  Battalion Surgeon recommend the Applicant’s administrative separation. “LCpl P_’s (Applicant) symptoms had no specific precipitating factors. Upon multiple evaluations, there was an incidental finding of mild leoscoliosis at T12. However, doubt such finding was significantly responsible for patient’s symptoms. LCpl P_ was initially seen at 2/4 BAS, later referred to Sports Medicine and Rehabilitation Therapy (SMART) Clinic, which in turn referred him to a chiropractor at Naval Hospital Camp Pendleton. After physical, medication and chiropractic therapies, LCpl P_’s symptoms did not improve. This prompted a recommendation for administrative separation from 2/4’s medical officer. Patient then transferred commands and re-evaluated by SMART clinic and orthopedic department, both of which included administrative separation as part of the options given to the patient. Latest evaluation by orthopedic department stated no surgery indicated. Patient was placed on an 8-month limited duty board, but doubt improvement. This condition is not responding to treatment and significantly impacts the patient’s ability to perform his duties. Additionally, LCpl P_ has been removed from his MOS duties yet remains symptomatic. With continued complaints of the same condition it is recommended that the patient be administratively separated from the United States Marine Corps due to an inability to perform his duties.”
040528:  Officer-In-Charge, Headquarters Battalion, 1 st Marine Division (Rear), notified Applicant of intended recommendation for a general (under honorable conditions) discharge by reason of a condition not a disability. The factual basis for this recommendation was the Battalion Surgeon’s recommendation for Administrative Separation due to a physical condition not a disability.
040528:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements in rebuttal.

040528:  Counseled for deficiencies, specifically Applicant’s physical condition. Specific recommendations for corrective action and sources of assistance provided. Applicant advised that he is being processed for administrative separation for physical condition not a disability.

040528:  Officer-In-Charge, Headquarters Battalion, 1 st Marine Division (Rear), recommended to Commanding General, MCB Camp Pendleton (via Commanding General, 1 st Marine Division) Applicant’s general (under honorable conditions) discharge due to physical condition not a disability. The factual basis for this recommendation is the Applicant’s leo scoliosis.

040616:  Commander, 1 st Marine Division (Rear), recommended Applicant’s general (under honorable conditions) discharge due to a condition not a disability.

040625:  GCMCA, Commanding General, Marine Corps Base, Camp Pendleton, directed the Applicant's general (under honorable conditions) discharge by reason of condition not a disability.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040715 by reason of convenience of the government due to condition not a disability (A) with a service characterization of general (under honorable conditions). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but not equitable (B and C).

When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. 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. In the Applicant’s case, the Board could find neither misconduct nor insufficient proficiency and conduct marks to justify a general (under honorable conditions) discharge. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his faithful service to the Marine Corps and warrants an upgrade of his characterization of service. Relief granted.

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 V, Para 502, Propriety .

C. 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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