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USMC | DRB | 2005_Marine | MD0501536
Original file (MD0501536.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. MD05-01536

Applicant’s Request
The application for discharge review was received on 20050914. 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 20060614. 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) 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 to the Board:

“I was not aware that the discharge was to be a general under honorable condition. I was led to believe that my discharge would be honorable.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011227 – 20020210               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020211             Date of Discharge: 20030611

 Length of Service (years, months, days):

 Active: 01 04 00
         Inactive: None

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

 Age at Entry: 18

Years Contracted: 5

 Education Level: GED                                AFQT: 72

 Highest Rank: LCpl                                           MOS: 6211

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.6 (3)                                Conduct: 3.5 (3)

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


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 :

 020719:  Counseling: Advised of deficiencies in performance and conduct (Violation of Article 86, by being UA from 2200 curfew on 020715.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020923:  Counseling: Advised of deficiencies in performance and conduct (Failed to meet minimum Marine Corps Standards of military appearance. On 020912 during a uniform inspection it was noticed that you failed to shave, press you uniform and polish your boots.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021209:  Medical evaluation by Naval Hospital, Pensacola, FL: This is a 19-year-old active duty lance corporal, United States Marine Corps, with nine months of active duty service. He was seen at Naval Hospital Pensacola Orthopedics in December 2002 for complaints of right shoulder pain.
         The patient states that there was no significant trauma, the pain just started one day after doing pull-ups. He feels an intermittent popping in the shoulder. His pain is posterior. It is in the superior medial border of the scapula. He has been treated with physical therapy, Naprosyn, subacromial and trigger point injections, and has been on a Limited Duty Board with no relief of pain. The patient gets pain with heavy lifting, pull-ups, and strenuous activity. He is able to reproduce the symptoms by protracting his scapula.
         Physical Examination: The right shoulder reveals full range of motion. He has significant scapulothoracic popping at the superior medial border of the scapula. He has tenderness to palpation of the superior medial border of the scapula. There is no scapular winging. He has a negative Neer sign, negative Hawkins sign, negative apprehension, and a negative O’Brien sign. There is no tenderness to palpation of the glenohumeral joint or of the biceps tendon. There is not tenderness to palpation of the AC joint.
         Radiographic Finding: He had an MRA of the shoulder, which showed not significant finding. He also had an MRI of the C-spine, which showed degenerative disc disease of C3-C-4, C4-C5, and C5-C6. There was no cord or nerve root compression. X-rays of the C-spine and of the shoulder were normal. A bone scan was also normal.
         Impression:
         1. Right shoulder scapulothoracic bursitis, persistent.
         2. Cervical degenerative disc disease, asymptomatic.
         Recommendations:
         1. Return to parent command.
         2. I recommend Administrative Separating based on an orthopedic
condition not amounting to a disability.
          3. I recommend that the patient remain in a light duty status until Administrative Separation is complete, to preclude any heavy lifting, push-ups, sit-ups, running, or any strenuous upper body activity.
4.       No further care at this clinic is needed at this time.
021213:  NJP for violation of UCMJ, Article 92:
         Specification: Was, at, AMS-1, MATSG-21 on or about 6 Dec 02, derelict in the performance of his duties in that he negligently failed to keep proper Marine Corps field day standard and failed to keep proper Marine hygiene standards.
 Award: Forfeiture of $522.00 pay per month for 2 months, restriction for 60 days, reduction to E-2. Not appealed.
021213:  Counseling: Advised of deficiencies in performance and conduct (NJP proceedings concerning the violation of Articles 92 of the UCMJ.), necessary corrective actions explained, sources of assistance provided.

030106:  Counseling: Advised of deficiencies in performance and conduct (You were diagnosed with right shoulder Scapulothoracic bursitis and cervical degenerative disc disease (Non- disability).), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030128:  Counseling: Advised of deficiencies in performance and conduct (Failure to correct Scapulothoracic Bursitis and cervical degenerative disc disease (Non- disability).), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.
030204:  Applicant notified of intended recommendation for discharge with the least favorable characterization of under other than honorable condition. Commander officer, Aviation Maintenance Squadron One, recommends general (under honorable conditions) by reason of reason of a physical condition not a disability. The factual basis for this recommendation was based on the Applicant’s involvement of a discreditable nature with military authorities during this enlistment, as evidenced by five adverse entries contained on the Applicant’s 11, one nonjudicial punishment contained on your page 12 and no page 13 entries and your diagnosed right shoulder scapulothoracic bursitis and cervical degenerative disc disease.

030205:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030207:  Commanding Officer, Aviation Maintenance Squadron One, recommended to the Commander, Marine Corps Air Bases, Easter Area, that the Applicant be discharged with a general (under honorable conditions) by reasons of misconduct due to a patter of misconduct and convenience of the government due to a physical condition not a disability. The specific circumstances upon which this recommendation is based are contained in paragraph 2 of enclosure (1). As evidenced by enclosure (2), private First Class P_ (Applicant) has five adverse entries contained on his page 11, one nonjudicial punishment for violating article 92 of the Uniform Code of Military Justice, and no page 13 entries. Private First Class P_ (Applicant) was seen for a medical evaluation, and the clinical impression was Right Shoulder scapulothoratic bursitis, persistent and cervical degenerative disc disease, asymptomatic (Non-Disability), as shown in enclosure (3). Private First Class P_ (Applicant) was reevaluated on 23 January 2003 and was recommended for discharge, as shown in enclosure (4). Due to the member’s misconduct and medical condition, this renders this individual incapable of service. Retention of the respondent is inconsistent with the morale, discipline, and military effectiveness of this organization.

030514:  Commanding Officer, Marine Corps Air Bases, Eastern Area, recommended to Commanding Officer, Aviation Maintenance Squadron One that the Applicant be discharged with an General (under honorable condition) by reason of convenience of the Government (physical Condition Not a Disability) and misconduct (pattern of misconduct).

030514:  Commanding Officer, Marine Aviation Training Support Group-21, authorized the discharge from the U. S. Marine Corps (General Under Honorable Conditions).











PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030611 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 and equitable (B and C).

The Applicant contends he was not aware that the discharge was to be a general under honorable conditions. The Applicant also contends he was led to believe that his discharge would be honorable. The NDRB advises the Applicant that when a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) 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. Five adverse counseling reports and the award of nonjudicial punishment (NJP) on one occasion for violations of Article 92 of the Uniform Code of Military Justice (UCMJ) marred the Applicant’s service. In addition to the Applicant’s misconduct, the Applicant was seen by competent medical authority on 20021209, and recommended for administrative separation based on an orthopedic condition not amounting to a disability. The NDRB advises the Applicant that on 20030205, the record of fact shows that the Applicant was properly notified by the command of the basis for his separation, and that the least favorable characterization he could receive was under other than honorable conditions. The record also documents that the Applicant was advised of his rights, elected not to consult with counsel, and elected to waive all rights. The Board found after a review of all the evidence that this diagnosis and subsequent administrative separation was proper and equitable, and that an upgrade in characterization to honorable would be inappropriate. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief denied.
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 additional evidence related to this 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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