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USMC | DRB | 2006_Marine | MD0600416
Original file (MD0600416.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. MD06-00416

Applicant’s Request
The application for discharge review was received on 20060118 . 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 20061116 . 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:
“ More than 6 months has passed since my discharge. My career goal in law enforcement requires that I possess an HONORABLE discharge from military service. Due to the nature of my discharge, which was an administrative separation due to medical inability to perform as a Marine (two herniated discs in my back); I was given a less then HONORABLE discharge (Generable (Under Honorable Conditions). I believe that my performance of duty demonstrates that as a Marine, my performance of duty to the Corp was in keeping with the award of an Honorable Character of S e rvice discharge rating. I injured myself while performing my duties and not due to any actions on my part that could be characterized as any thing other than Honorable. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and Member 4)
Ltr from Kootenai County Veterans Service Office, dtd January 10, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    19990226 – 19990328               COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19990329              Date of Discharge: 20011211

Length of Service (years, months, days):

 Active: 0 2 0 8 13
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 23

Highest Rank: LCpl                                   MOS: 3533

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                  Conduct: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214) : Sea Service Deployment Ribbon, Rifle Marksman Badge

*Not Available


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 :

000410:  Naval Hospital , Okinawa : 21 year old active duty male complains of LBP since 1/2 hump 9 months ago. Patient was dehydrate d at that time, but states having LBP daily. Has been being seen at PT since 000508 . W ent to back school last month. Also injured l eft shoulder in November is being seen by P T they are consulting ortho. Patient requested Lt duty.
         A/P: 1. Chronic LBP- continue strengthening/stretching
         2. Left Shoulder strain, poor [unreadable]
                  -awaiting o rtho
                   -extend lt Duty until ortho appt
                  -F/U with ortho as needed
                  - Consider med Board
                   - no surgical o p tions
000605:  Acknowledged understanding of eligibility but not recommended for promotion to L Cpl for the month of July because of lack of m aturity. Applicant chose not to make a statement.
000710:  Ltr from Commanding Officer, U. S. Naval Hospital, Okinawa, to Commanding Officer, 3d Supply Battalion indicated , a Limited Duty Board was convened on the Applicant. The Board report recommended limited duty for eight months.
000926:  Consultation request to Ortho pedic Clinic : USN AD: 22 year old male complains of chronic LBP/Shoulder Pain. Patient known to Ortho. Patient desires separation from service. Member currently on Limited Duty Board, last consult “expired” do to patient not being seen in “time period , ” please eval for final disposition, unable to keep Marine in full duty status.
010223:  Naval Hospital Okinawa : 22 year old male complains of chronic low er back pain. Symptoms exacerbated by an increase in activity. Conservative treatment failed i.e., NSAID, light duty, physical therapy. Ortho appt and x-ray negative. Ortho recommended admin separation due to un resolved s ymptoms despite aggressive treatment . Separation physical evaluation was done. X-ray negative MRI positive L 5 -S 1 minimal her niation noted.
         A: Chronic Back Pain
          P: Consult for advice to n eur osurgeon was sent and pending appt.
          MO’s consulted, assurance provided.

010319:  Naval Hospital Okinawa : 22 year old complains about LBP 1 ½ years while running a hump . P atient states he beca me paralyzed in both lower extremities, [could not] wi ggle toes. No bladder incontinence . Patient was standing whi le he was “paralyzed. ” Patient seen in othro and referred to PEB. Patient to PT /Back school. No better, Patient now referred for admin sep.

010413:  NJP for violation of UCMJ, Article 86:
 Specification: LCpl F_ (Applicant) did, on or about 1800, on 010305, at Bldg 5718, Camp Foster, Okinawa, Japan, absent himself from his appointed place of duty, to wit: field day formation.
Violation of UCMJ, Article 91:
Specification: LCpl F_ was, on or about 1800, on 010305, at Bldg 5718, Camp Foster, Okinawa, Japan, disrespectful in language or deportment with Sgt C_, by being UA from field day formation, after Sgt C_ told LCpl F_ that liberty was secured.
 Violation of UCMJ, Article 92: LCpl F_ did, on or about 1715, on 010305, at Bldg 5718, Camp Foster, Okinawa, Japan, violate a lawful order, to wit: BNO 1601.3D, by not signing out on liberty and not having a liberty buddy.
         Award: Forfeiture of $584.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Not appealed.
010416:  Counseling: Advised of deficiencies in performance and conduct (Pattern of misconduct. Specifically, on 010305, your insubordinate conduct toward a Noncommissioned officer, unauthorized absence from your appointed place of duty, and violation of the battalion liberty order.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant choose not to make such statement.
010430:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the month of June because of NJP . Applicant chose not to make a statement.
010803:  Counseling: Advised of deficiencies in performance and conduct (Medical Cond itions (Lower Back Pain) not a d isability causing a chronic limited duty status beginning 000324), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
          Applicant choose not to make such statement.
010821:  Commanding Officer, U. S. Naval Hospital, Okinawa, advised Commanding Officer, 3 rd Supply BN 3 rd FSSG that the Applicant had been seen and examined by a physician from Orthopedic Surgery Department, U. S. Naval Hospital, Okinawa. [Applicant] is currently not fit for full duty and will not become so in a reasonable length of time. Though the medical condition prevents the member from being fit for duty in the armed forces, it should not prevent the individual from becoming a productive member of civilian society; therefore, the medical condition is not classified as a disability and does not warrant a medical board. As per the above reference, this individual is thus recommended for administrative separation at the discretion of his command for a physical condition beyond the member’s control that interferes with duty st at us but is not a disability.

010906:  Applicant completed separation physical.
011003 :  Letter from LCDR P_ J. T_ , MD. Department Head, Orthopedics , US N H Okinawa , in reference to clarification of a dministrative separation recommendation of Applicant.

011203 :  Command er, 3 rd Force Service Support Group, advised the Commandant of the Marine Corps (MMSB) that the Applicant will be discharg ed with a character of service as general (under honorable conditions) by reason of convenience of the government due to a physical condition not a disability.


Service Record Book contains a partial Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011211 by reason of convenience of the government due to condition not a disability (A and B ) 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 ( C and D ). The Board presumed regularity in the conduct of governmental affairs ( E ).
The Applicant implies that his discharge is inequitable because his performance of duty was honorable. When a Marine’s service been honest and faithful, it is appropriate to characterize that service as honorable. A general 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 service was marred by a retention warning and nonjudicial punishment proceedings for violations of Articles 86, 91 and 92 of the UCMJ. Violations of Articles 91 and 92 are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction by a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls far short of that required for an upgrade of his characterization of service. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

The Applicant implies that his discharge should be changed because it has been “more than 6 months.” There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. There is no law or regulation, which provides that a 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 relevant post-service documentation for the Board to consider. 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. 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, insubordinate conduct or Article 92, failure to obey order/regulation.
C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

E . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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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