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USMC | DRB | 2005_Marine | MD0501264
Original file (MD0501264.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. MD05-01264

Applicant’s Request
The application for discharge review was received on 20050718. 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 20060420. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discovered inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change to HONORABLE and the reason for discharge shall remain CONDITION NOT A DISABILITY.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was discharged for a physical condition under an administrative separation for an inability to complete my PFTs. I was discriminated against by my command for being a woman in the military.”

 Documentation
In addition to the service record and medical record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Six pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19960502 - 19960624      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19960625             Date of Discharge: 19990416

 Length of Service (years, months, days):

 Active: 02 09 22
          Inactive: None

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

 Age at Entry: 18

 Years Contracted: 5

 Education Level: 12                                 AFQT: 84

 Highest Rank: LCpl                                  MOS: 6464

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (8)                                Conduct: 4.2 (8)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): None


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A DISABILITY, authority: MARCORSEPMAN 6203.2.

 Chronological Listing of Significant Service Events :

Undated:         Consultation Sheet - Medical evaluation by Ortho NMCP.
         Symptoms: Chronic PFPS
         Observation: Knees essential normal exam. Minimal patella compression. Minimal patella inhibition. X-rays negative.
          Assessment: Knee PFPS.
         Plan: 1. Fit for full duty. 2. If unable to do full duty should be administratively separated under MCO “physical condition not disability”.
970319:  NATTC BMC Physical Therapy Discharge Note: Applicant has failed to keep follow up appointment. Applicant status is unknown at this time. Applicant was seen on 16 Jan 97, 18 Feb 97, and scheduled for follow up on 11 Mar 97. Applicant is discharged to follow up with primary medical officer. It is unknown if goals were met at this time. Treatment will be resumed upon new consult.
970423:  Medical evaluation by NATTC BMC NAS PEN
         Assessment: Unresolved PFS.
         Plan: Ortho consult. PT consult. Light duty x 2 wks. Follow up with ortho consult.

970624:  Medical evaluation by BMC Naval Air Station Oceana
         Symptoms: Follow up of PFS both knees.
         Assessment: Bilateral PFS.
         Plan: Light duty - no lower body exercise - until seen by ortho. Ortho consult for eval - for fitness for duty.

971230:  Counseling: Advised of deficiencies in performance and conduct (substandard performance. Specifically, on 971117 failed to obtain a passing score on the semi-annual physical fitness test. Failed to complete the required run time of 31:00 minutes needed to meet the minimum standards.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.





980730:  BMC Psychology Department Psychological evaluation:
         AXIS I: Neglect of child
                  Adjustment disorder NOS (removal of her infant)
         AXIS II: Diagnosis deferred.
         Recommendation: Psychological tests were administered this date. Any recommendations will be made once psychological tests are interpreted.

990105:  Marine Aviation Logistics Squadron 13, General Medical Officer
         Assessment: 1. Patellar Femoral Pain Syndrome (PFPS), a chronic medical condition causing impairment in her ability to perform tasks required as a Marine, including physical readiness tests. 2. Has a history of knee problems dating from December 1996. Given several light duty chits and has undergone physical therapy without resolution of the bilateral knee pain. Seen by Orthopedics in June 1997 which recommended administrative separation if she was unable to perform in a full duty status. Continues to experience knee pain with running. This chronic knee pain will not improve secondary to Patellar Femoral Pain Syndrome.
         Recommendation: Administrative separation for a chronic medical condition, not a disability.

990126:  Applicant notified of intended recommendation for discharge with a characterization of service as honorable by reason of convenience of the government specifically a physical condition not a disability. Applicant notified that the least favorable characterization of service is general under honorable conditions. The factual basis for this recommendation was evidenced by the information provided by medical personnel of the Flight Line Aid Station and as reflected in your service record.
990127:  Counseling: Advised of deficiencies in performance and conduct (Patellar Femoral Pain Syndrome (PFPS).), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990129:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990201:  Commanding Officer, MALS-13, MAG-13, 3D MAW, MCAS Yuma, AZ recommended to Commanding Officer, MAG-13, 3D MAW, MCAS Yuma, AZ Applicant’s discharge with honorable by reason of convenience of the government due to a physical condition not a disability.





990209:  Marine Air Group 13, Group Surgeon:
          Assessment: 1. Patellar Femoral Pain Syndrome (PFPS), a chronic medical condition, not a disability, causing impairment in her ability to perform tasks required as a United States Marine.
         Recommendation: Concur with both Lt C and the Orthopedic Surgeon. I recommend administrative separation for a chronic medical condition, not a disability, aggravated by continued required running and active service.
990222:  Commanding Officer, MAG-13, 3D MAW, MCAS Yuma, AZ, recommended Applicant’s discharge with honorable by reason of convenience of the government due to physical condition not a disability.

Undated:         Staff Judge Advocate Review: SJA recommends discharge with honorable by reason of physical condition not a disability. SJA comments: “This Squadron and Group Commanders have recommended a characterization of discharge as Honorable. There is insufficient negative evidence to warrant any other type of characterization of service.”

990326:  GCMCA, Commanding General, 3d Marine Aircraft Wing approved the Applicant's discharge with a general (under honorable conditions) by reason of physical condition, not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990416 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 (B); however, the characterization of discharge was inequitable (C).

The Applicant implies that her characterization of service was improper because she was “discriminated against by [her] command for being a woman in the military.” T he Applicant’s allegation is serious. However, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. In the Applicant’s case, she bears the burden of supporting her allegation through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was discriminated against. In fact, the records show that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s military service and subsequent administrative processing. The Applicant’s statement alone do not provide sufficient basis to challenge the propriety of the discharge. Therefore, the Board considered the Applicant’s discharge properly characterized. Relief on this basis is denied.

The Applicant suggests that her discharge was improper because she was “discharged for a physical condition under an administrative separation for an inability to complete [her] PFTs.” A Marine may be administratively separated for the convenience of the government due to physical condition not a disability whenever the Marine’s performance deteriorates. In the Applicant’s case, competent medical authorities diagnosed the Applicant with Patellar Femoral Pain Syndrome (PFPS), a chronic medical condition causing impairment in the Applicant’s ability to perform tasks required as a Marine, including the physical fitness tests. The Applicant was properly notified, processed and separated. Relief denied.

Marines separated due to condition not a disability may be given an honorable or general (under honorable conditions) characterization of service. An honorable discharge is warranted only if service, notwithstanding the basis for separation, is otherwise so meritorious that any other characterization would be clearly inappropriate. A general (under honorable conditions) 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 proficiency and conduct marks were 4.2 and 4.2, respectively, on 8 markings. Her record contained two counseling entries: one for failure to pass the physical fitness test and one for being diagnosed with Patellar Femoral Pain Syndrome. There were no other adverse entries. The Board concluded that these two counseling entries are not significantly negative enough to outweigh the Applicant’s positive performance and conduct. Accordingly, the Board unanimously voted to change the characterization of discharge to Honorable. Relief 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. 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 P1900.16D, effective 890627 until 950817), 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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