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USMC | DRB | 2006_Marine | MD0600396
Original file (MD0600396.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. MD06-00396

Applicant’s Request
The application for discharge review was received on 20060110 . 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 20061106 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of service shall change to HONORABLE but that the reason for separation shall remain 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 discharged from service in the Marine Corps involuntarily due to injury occurred during training. The condition was not a disability as stated on DD214. I would love to serve as a member of the Air National Guard and it seems that only with a Honorable Discharge will I be able to achieve this dream. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Radiologist’s Report (5 pages)
Memorandum from Officer-in-Charge, SMART Center, M_ T. K_, PA-C, MMSc, LT, MSC, USN

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020 321              Date of Discharge: 20030224

Length of Service (years, months, days):

 Active: 00 10 10
         Inactive: 00 00 24

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

Age at Entry: 25

Years Contracted: 8

Education Level: 12                                 AFQT: 57

Highest Rank: PFC                                    MOS: 9971

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4 . 2 ( 1 )                                Conduct: 4 . 2 ( 1 )

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

020415:  Applicant began initial active duty training.
020724:  Branch Medical Clinic, 52 Area, Camp Pendleton, CA, Radiologic Examination Report by B. R. A_, MD : The examination showed linear localized periosteal reaction along the medial proximal third of the femur compatible with stress reaction. The remainder of the b one is unremarkable.
020801 :  Counseling: Advised of deficiencies in performance and conduct ( Physical conditions - Stress Fracture in right Femur ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose to make a statement.

021114:  Branch Medical Clinic, 52 Area, Camp Pendleton, CA, Radiologist’s Report by R. G. C_, MD : Applicant seen for Right Femur Pain . Impression: Comparison is made with 020924. Again identified is cortical thickening involving the medial proximal third of the femur, consistent with healing stress fracture, not showing change. Findings suggesting healing stress fracture of the proximal femur.

021119:  Naval Hospital, Camp Pendleton, CA, Radiologist’s Report by J. R. Saikewicz, MD : Applicant seen for continued pain in right tibia and left femur despite rest and rehab efforts. Impression: Stress reaction seen in the proximal shaft of the right femur compatible with shin splint/stress reaction. Probably healed proximal left tibial stress fracture.

030109:  Memorandum from M_ T. K_, PA-C, MMSc, LT, MC, USN, Officer-in-Charge, SMART Center : It is recommended that subject Marine be administratively discharged from the United States Marine Corps. Subject Marine was diagnosed with Post Traumatic Synovitis and A Stress Fracture in his right femur. This injury has caused continued pain and difficulty with USMC training activities. During the interval period of 7 months the member has reported no improvement in pain relief and ability to perform regular Marine Corps training. At this point we have exhausted conservative care. This is considered a physical condition and not a disability. Further training will continue to cause symptoms of pain and possible injury and disability. No further treatment is recommended at this time for this condition.
030114:  Applicant submitted s tatement of rebuttal .
030123:  Applicant has been found physically qualified for separation.

 030127 :  Applicant notified of intended recommendation for discharge with least favorable character of discharge as general (under honorable conditions) by reason of Convenience of the Government due to physical condition not a disability. The factual basis for this recommendation was being diagnoses a treatment failure for Post Traumatic Synovitis and a Stress Fracture in your right femur. This condition hinders your ability to train and has also been determined to be incompatible with continued military service.

030127:  Applicant advised of rights and having elected not to consult, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030127 :  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, recommended to Commanding General, Marine Corps Base, that the Applicant be discharged with a general (under honorable conditions) by reason of Convenience of the Government, specifically, physical condition not a disability.

030129:  Applicant to voluntary leave awaiting administrative separation.
030212 :  Commanding Officer, Marine Corps Base, informed the Commandant of the Marine Corps (MMSB-20) that the Applicant will be discharge d with a general (under honorable conditions) by reason of condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030224 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 in equitable (B and C).

The Applicant requests an upgrade to honorable. Under applicable regulations, separations based on a physical condition not a disability should be characterized based on the following criteria. If significant negative aspects of a Marine’s performance outweigh positive aspects of performance, to include proficiency and conduct average markings, and administrative separation is warranted, the least favorable characterization of service is general under honorable conditions. The Applicant’s record s show that he complied with the medical requirements for rehabilitation and had exhausted conservative medical care. In addition, the records contain no evidence of NJ P and his proficiency and conduct mark s were sufficient to merit an honorable discharge. In light of this evidence, the NDRB unanimously concluded that the Applicant’s character of service shall change to Honorable. Relief granted .

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the 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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