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USMC | DRB | 2005_Marine | MD0500955
Original file (MD0500955.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00955

Applicant’s Request
The application for discharge review was received on 20050513. 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 designated Veterans of Foreign Wars as the representative on the DD Form 293.

 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 the application:

“Had trouble during physical doing duck walk which lead to misdiagnosis during x-ray and also was told not to divulge certain info. By Recruiter.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

 “Propriety or Equity Issue(s): The applicant was separated with an Entry Level Separation at 183 days of active service.

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

Mr. J_ (Applicant) served in the US Marine Corps from Nov. 29, 1999 to June 1, 2000. He was discharged with an Entry Level Separation after 180 days. He was separated because of a condition that pre-existed his enlistment in the USMC.

Mr. J_ (Applicant) has petitioned the board asking that his discharge be re-characterized as ‘General (Under Honorable Conditions).’ As he passed the 180 day mark in service, it may be appropriate to re-characterize Mr. J_ (Applicant) discharge to reflect that he was not in an entry level status. The VFW supports Mr. J_ (Applicant)’s request for relief.

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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Inactive: USMCR (DEP)    19970730 – 19980803               COG
Inactive: USMCR (DEP)    19980814 – 19990705               COG
          Inactive: USMCR (DEP)    19991112 – 19991128               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19991129             Date of Discharge: 20000601

 Length of Service (years, months, days):

 Active: 00 06 03
         Inactive: None

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

 Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 59

 Highest Rank: PFC                                   MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.7 (2)                       Conduct: 3.7 (2)
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge.


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 :


000411:  Counseling: Advised of deficiencies (specifically PFPS of the left knee). Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

000419:  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 (non-resolving patella femoral syndrome and Osteochondrosis dessicans of the left knee), which is so severe that your ability to function effectively in the military environment is significantly impaired.
000419:  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.

000501:  Commanding Officer, Naval Hospital, Camp Lejeune: “PFC J_ (Applicant) is a 19 year old male with bilateral knee pain which began in high school while playing football. He has been seen multiple times in boot camp and at Camp Geiger. He has been followed by Dr. K_ and Mr M_ M_, Physician Assistant, Camp Geiger Branch, Lt. H_ of Sport Medicine and Dr. G_ of Orthopedics, Naval Hospital, Camp Lejeune, NC. He has been diagnosed with bilateral patella femoral syndrome and Osteochondrosis dessicans of the left knee. He has failed to respond to light duty, medication and Sports Medicine rehabilitation. PFC J_ (Applicant) will be unable to complete the training to continue on active duty. He has waived his rights to a Physical Evaluation Board after counseling. He is recommended for an administrative separation due to non-resolving patella femoral syndrome and Osteochondrosis dessicans of the left knee.”

000523:  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Camp Lejeune, 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 condition not a disability.

000601:  GCMCA, Commanding Officer, School of Infantry, Camp Lejeune, directed the Applicant's discharge with an uncharacterized service by reason of physical condition, not a disability, which interferes with the performance of duties.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000601 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 Applicant implies that his discharge was improper because of misdiagnosis and alleged recruiter misconduct. The records show that the Applicant was seen multiple times by competent medical authorities at Parris Island, SC and Camp Lejeune, NC. These visits culminated in the diagnoses, which form the basis for separation. After reviewing the records, the Board could find no evidence to support the Applicant’s claim of misdiagnosis or recruiter misconduct. Until the Applicant provides substantial and credible evidence to support his contentions, the government enjoys a presumption of regularity in the conduct of its affairs (D). Relief on this basis is denied.

The Applicant representative, Veterans of Foreign Wars, contends that the Applicant’s discharge was improper since he was discharged at 183 days of active service. 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 records show that the commanding officer notified him of intent to discharge on 20000419. As of that date, the Applicant had 00 year(s), 04 month(s), and 21 day(s) of active service. The Board found that the Applicant’s discharge was appropriately characterized, and the Applicant’s performance and conduct during that period warrants no higher characterization. Relief 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 P1900.16E, 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 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 .

D. 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.

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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