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USMC | DRB | 2005_Marine | MD0500954
Original file (MD0500954.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD05-00954

Applicant’s Request
The application for discharge review was received on 20050509. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 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 the Disabled American Veterans.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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 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 an attached document/letter to the Board:

“I am writing this letter hoping you can be of some help to me. I have tried everything up until this point that I can possibly can do on my own. I have been in touch with Veterans Affairs but they were no help to me either.

This is the problem:

I enlisted in the Marine Corps on April 28, 2003. I passed the medical and written exam to enlist. At that time I was not aware of any medical problems. While I was at boot camp on Parris Island, I was injured during the final week during the Crucible. I landed on my left knee on a rock or tree stump during training. I did not report it because I was a few days away from graduation. I thought it would get better on it’s own. While I was home on my 10 day leave, it began to be more painful as time went on. My orders were to report to Camp Geiger for intense training for my MOS. As time went on, my knee just got worse. When I reported to Camp Geiger I was ask if I was injured in any way. I told them yes and about my knee. I was told to report to the corpsman for an exam. He came back an said that I may not be a Marine anymore because I had Osgood-Schlatter’s disease. They told me I have had it all my life. I was not aware of any such problem. I had always been active in sports from Rec. ball to High School. I have always seen the same doctor for any injuries that were sports related in any way. When I was discharged, they told me to write on my discharge papers that I have had Osgood-Schlatter’s my entire life. I wrote what they told me. They also told me they were considering charges against me for false enlistment. I did not know I had this disease. After my discharge, the local VA wanted me to see my doctor. I did see Dr. J_ C. M_ on Dec. 9, 2003. He informed me that this was military connected due to my injury. The VA has left me with a doctors bill and no help to resolve this problem. I have been seen in Columbia twice and they said it was not military connected. Also, my discharge needs to be changed to General/Under Honorable Conditions. When I was discharged they took everything back from me that I paid for in boot camp. I became a Marine just like everyone else at boot camp and it was stripped from me. I worked hard to earn my pin and to graduate. They told me that Uncharacterized discharge was like I never was in the Marine Corps. I did not receive any separation pay or payment back for the uniforms that I had to pay for in boot camp. They say I owe them $22.00 or so. But I don’t know for what. I stay in pain when I try to do the things I enjoy. I would like my discharge change, my knee fixed and the money they owe me. Can you Please help me? This is the only way I know to get anyone to listen to me and to get me some help. Thank you for your time and any help you can offer. I have waited a long time for some help to get on with my life.
Sincerely,
[signed] N_ C. H_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

 “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized discharge to that of Honorable.

The FSM served on active service from April 28, 2003 to August 26, 2003 at which time he was discharged due to a Condition not a Disability.

The FSM contends the current discharge is improper because his condition was incurred while entitled to active duty pay, or at the very least it was aggravated by his service. Therefore because there was no bad conduct established, only the conditions effect, it should not effect the character of his discharge.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.

Respectfully,
[singed]
K_ L. G_
National Service Officer”






 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Medical pages dtd December 9, 2003 (2)
Applicant’s DD Form 214 (Member 1 and 4) (2)
Separation/Travel Pay Certificate, dtd August 26, 2003 (2)
Seventeen pages from Applicant’ service record (2)
Authorization form, dtd March 29, 2005
Letter to Congressman, dtd March 29, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20030407 - 20030427      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20030428             Date of Discharge: 20030826

 Length of Service (years, months, days):

 Active: 00 03 28
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 21

 Years Contracted: 4

 Education Level: 12                                 AFQT: 52

 Highest Rank: Pvt                                   MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (2)                                Conduct: 4.2 (2)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, National Defense Service Medal


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 :

030407:  Report of Medical History: Applicant answered “NO” to “Have you ever had or do you now have: foot trouble; impaired use of arms, legs, hands, or feet; swollen or painful joints; and knee trouble?”

030607:  Counseling: Advised of deficiencies in performance and conduct (Diagnosed physical condition not being a disability (Osgood Schlatter’s Achilles Tendonitis) condition which interfere with the effective performance of duties), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030811:  Medical evaluation by Naval Hospital, Camp Lejeune, NC
          Assessment: History of Osgood Schlatter’s (EPTE) and Achilles Tendonitis (EPTE). Patient is poorly motivated with a chronic history of knee and heel pain. Patient is highly likely to continue to have problems that would prevent him from training and full duty status.
         Recommendation: Strongly recommended for an administrative separation for a physical condition not a disability.
030813:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as uncharacterized by reason of physical condition not a disability. The factual basis for this recommendation was your physical condition (history of Osgood Schlatter’s and Achilles Tendonitis), which is so severe that your ability to function effectively in the military environment is significantly impaired.
030813:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030813:  Voluntary Statement: “I got here to SOI on August 5, 2003. I never was put in a training company. I went straight to forming [because] of my injuries. On Aug. 6, 2003, I went to BMC to have my knee [and] ankles/heel check. I was told that I have Osgood Schlatter’s disease in my left knee [and] I also have Achilles tendonitis in my ankles [and] also a little tendonitis in my lef[t] knee. I had it my whole life. Now it’s just a lot worse [and] a lot of pain. I was put in MRP on Aug 7, 2003. I started receiving therapy on Aug 8, 2003. It made the pain a lot worse when the lad[ies] in SMARTS were touching my injuries. I couldn’t take the pain anymore. I went to therapy once on Aug 8 2003. It hurt worse at therapy than it did help. I can’t walk very far at all or carry anything of weight without it putting pressure on my knee [and] ankles/heel. I am no good for the Marine Corps. I can’t do anything that we do. I do not wish to be retained. The injuries hurt to much.”

030813:  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune, NC recommended to Commanding Officer, School of Infantry, the Applicant’s discharge with an uncharacterized service by reason of convenience of the government due to a physical condition not a disability. The factual basis for this recommendation was based upon the Applicant’s physical condition, which interferes with his effective performance of duty. Commanding Officer’s comments: Pvt H_ (Applicant) possesses a medical condition (history of [O]sgood [S]chlatter’s and [A]chilles [T]endonitis), which is so severe as to impair his ability to complete his required entry-level training. Consequently, SNM does not possess the physical ability to continue active service in the Marine Corps.

030819:  Medical evaluation at Naval Hospital Camp Lejeune, NC: Recommended Administrative Separation by Sports Medicine. Applicant qualified for separation from active duty.

030822:  GCMCA, Commanding Officer, School of Infantry, directed the Applicant's discharge with an uncharacterized service by reason of convenience of the government due to a physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030826 by reason of convenience of the government due to condition not a disability (A) with a service characterization of uncharacterized. 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 (B and C).

The Board noted a conflict between the Applicant’s request and that of his representative. The Applicant requests a service characterization upgrade to General (Under Honorable Conditions) while his representative (Disabled American Veterans) requests an upgrade to Honorable. The Applicant’s representative contends that the Applicant’s discharge was improper because his condition was incurred while on active duty or at the very least aggravated by his service. It is instructive to note that the Applicant’s records and submitted documents show that the Applicant has a history of not reporting medical conditions or problems. During his entry physical on 20030407, the Applicant denied any previous problems with his knee. Meanwhile, in his letter dated 20031209, Dr. J_ C. M_, MD, who had seen the Applicant six other times since age 14, states: “He [Applicant] does have a retro patellar tendon ossicle that is probably unresolved lesion of Osgood-Schlatter’s disease. I think that the patient [Applicant] may have had Osgood-Schlatter’s disease in the past, but he [Applicant] has never been seen for it.” Finally, in the Applicant’s letter to Congressman J. G_ B_ dated 20050329, he states: “I landed on my left knee on a rock or tree stump during training. I did not report it because I was a few days away from graduation. I thought it would get better on it’s own.” Clearly, the Applicant neither reported his injury nor sought immediate medical attention, and his knee got worse over time. The decision to separate was based on the commanding officer and medical officer’s determination that the Applicant’s physical condition (not considered a disability) interferes with his effective performance of duty. In such cases a member may be separated for the convenience of the government.

 By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit another characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his less than 4 months in the military to warrant a higher characterization. The Board determined that the Applicant’s discharge was appropriately characterized. No relief is granted on this basis.

The Applicant desires a discharge upgrade to honorable or general (under honorable conditions) in order to secure VA benefits. The Applicant is advised that 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. This issue does not serve to provide a foundation upon which the Board can grant relief. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Therefore relief on this basis is denied.

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.

The following is provided for the Applicant’s edification. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. While there 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 Marine Corps, the Board is authorized to consider 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, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant did not provided any post-service documentation for consideration. No relief is granted on this basis.

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 5420.174D 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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