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USMC | DRB | 2006_Marine | MD0600403
Original file (MD0600403.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. MD06-00403

Applicant’s Request
The application for discharge review was received on 20060112 . 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 repr esentative on the DD Form 293 .
Decision

A documentary discharge review was conducted in Washington, D.C. on 20061108 . 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 issue s, as stated on the application :
“ Up-grade needed for re-entry .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Previous DD Form 293, received March 16, 2005
 VA Form 21-4138 Statement in support of claim, dtd March 6, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20000418 – 20000507               COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20000508              Date of Discharge: 20031107

Length of Service (years, months, days):

 Active: 0 3 0 6 0 1 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1 day
         Confinement:              None

Age at Entry: 18

Years Contracted: 4
Education Level: 8 (GED)                                     AFQT: 37

Highest Rank: LCpl                                   MOS: 3521

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3                   Conduct: 4.2

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

01020 6 :  Counseling: Advised of deficiencies ( SNM did, on or about 5 Feb 2001, without authority, absent himself from the Rifle Range accountability formation. ), necessary corrective actions explained, sources of assistance provided .
010328:  NJP for violation of UCMJ, Article 86 (2 specifications):
 Specification 1. UA from FC 270, Maintenance Co, 2dTSB, 2dFSSG from 0700 010319 through 0630 010320.
Specification 2. UA from FC 270, Maintenance Co, 2dTSB, 2dFSSG failed to return to appointed place of duty on or about 0800, 010320.
          Award: Forfeiture of $272.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.
010405:  Counseling: Advised of deficiencies (Viol of Art 86, Unauthorized absence, SNM did, on or about 29 Mar 01, without authority, absent himself from his 0700 check in with the DNCO for restriction.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

 020124:  NJP for violation of UCMJ, Article 86: UA (AWOL) from 0600, 011221 to 1300, 011221.
         Award: Forfeiture of $304.00 per month for 1 month, restriction and extra duty for 14 days. Not appealed.

 021022:  NJP for violation of UCMJ, Article 86: In that LCpl W_ (Applicant), on or about 0601 021005, absent himself from his appointed place of duty to wit: FC-550 for formation and did remain so absent until 0600 021007.
 Violation of UCMJ Article 92: In that LCpl W_ (Appliant), did on or about 1630 021007, willfully disobey a direct order given by SSgt L_ to wit: to be in the alpha uniform at 1630 on 021007, and LCpl W_ (Applicant) failed to be in the proper uniform as it was his duty to do.
          Award: Forfeiture of $ 323. 00 per month for 1 month (suspended for 6 months) , restriction and extra duty for 14 days. Not appealed.
021022:  Counseling: Advised of deficiencies (Co NJP for viol of Art 86 and 92 of the UCMJ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
0 21022 :  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Nov – Apr because of Co NJP . Applicant chose not to make a statement.

030104:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month until compliance because of weight control. Applicant chose not to make a statement.

030213 :  Counseling: Advised of deficiencies (Viol of Art 123a, Writing checks with insufficient funds being available totaling $122.99), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
030227:  Counseling: Advised of deficiencies (Violation of Art 92, Failure to obey an order), necessary corrective actions explained, sources of assistance provided. Applicant acknowledged that he was previously advised that he is being processed for administrative separation.
030304:  NJP for violation of UCMJ, Article 92: LCpl W_ (Applicant) operated a motor vehicle without a seatbelt, and on a suspended license.
         Award: Forfeiture of $356.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 14 days. Not appealed.
030808:  Memorandum from General Medical Officer (S_ D_, M.D., LT, MC, USNR) , Group Aid Station: Applicant began having left knee pain two years ago. The initial diagnosis was PFPS (patellar femoral pain syndrome). He was treated with several non-steroid anti-infoammatory drugs and ice. He has also been seen by physical therapy for knee school and quadriceps strengthening exercises and stretching exercises. He failed to have improvement with his symptoms. He was also referred to Return To Readiness where he lost weight and increased his strength by continued to have left knee pain. With his pain level, he was mostly performing upper body exercises. On 18 October 2002, he was placed on an 8 month limited duty board and failed to improve.
         Applicant was referred to Orthopedics. He underwent a diagnostic knee arthroscopy of his left knee on 23 July 2003. The scope showed Grade III chondromalcia of the patella – degeneration of the back of his kneecap. This condition is unlikely to improve. The Orthopedist recommends his for administrative separation. Based on the above information, it is recommended that the Applicant be processed for administrative separation for physical condition not a disability.

030908:  Counseling: Advised of deficiencies ( F ailure to maintain proper physical conditioning iaw MCO P6100.12 . SNM has completed all treatment and rehabilitation program assigned. Medical Officers have recommended SNM for administrative separation as of 8 Aug 2003. ), necessary corrective actions explained, sources of assistance provided.
030922:  Counseling: Advised of deficiencies (not to maintain proper physical conditioning iaw MCO P6100.12. SNM has completed all treatment and rehabilitation program assigned. Medical Officers have recommended SNM for administrative separation as of 8 Aug 2003.), necessary corrective actions explained, sources of assistance provided. Applicant advised being processed for administrative separation recommended by medical officer.

undated :         Applicant notified of intended recommendation for discharge with the least favorable character of service as general (under honorable conditions) by reason of physical condition not a disability (PCND). The factual basis for this recommendation was is a diagnosis of Grade III chondromalcia of the patella.

unreadble :       Applicant advised of rights and having elected no t to consult , elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.


undated :         Commanding Officer, 2d Maintenance Battalion, Camp Lejeune, NC, recommend ed Applicant’s discharge with a general (under honorable conditions) by reason of physical condition not a disability (PCND).

031027 :  SJA review determined the case sufficient in law and fact.

031029 :  GCMCA, Commander, 2d Force Service Support Group, Camp Lejeune, NC , directed th e Applicant's discharge with a general (under honorable conditions) 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 20031107 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 desires an upgrade to honorable. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable. Indeed, the Applicant’s records contain:
•         Counseling entry on 20010206 for being absent without authority;
•         Nonjudicial punishment proceedings on 20010328 for violation of 2 specifications of UCMJ Article 86 Unauthorized absence;
•         Retention warning entry on 20010405 for deficiencies in performance and conduct concerning unauthorized absence ;
•         Nonjudicial punishment proceedings on 20020124 for violation of UCMJ Article 86 Unauthorized absence;
•         Nonjudicial punishment proceedings on 20010328 for violation of UCMJ Article 86 Unauthorized absence and Article 92 Failure to obey order;
•         Retention warning entry on 20021022 for deficiencies in performance and conduct concerning unauthorized absence and failure to obey order;
•         Retention warning entry on 20030213 for deficiencies in performance and conduct concerning writing checks with insufficient funds being available;
•         Counseling entry on 20030227 for deficiencies in performance and conduct concerning failure to obey order; and
•         Nonjudicial punishment proceedings on 20030304 for violation of UCMJ Article 92 Failure to obey order.
 The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit this 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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