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USMC | DRB | 2006_Marine | MD0601049
Original file (MD0601049.rtf) Auto-classification: Denied

ex-LCPL, USMC
MD06-01049

 Current Discharge and Applicant’s Request :

Application Received:                               20 060801
Narrative Reason for Separation:                          
Character of Service:                               
Discharge Authority :                                MARCORSEPMAN 6203.2
Last Duty Assignment/ Command at Discharge:       HQSPTBN, SOI, CAMP PENDLETON, CA

Applicant’s Request:
          Narrative Reason change to:               NONE REQUESTED
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             


Decision:

Date of Decision:                                            200706 14
 Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of 4-1 the Characterization shall GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of 5 - 0 the Narrative Reason shall remain CONDITION NOT A DISABILITY


Summary of Service :

Prior Service:
 Inactive: USMC R (DEP)                               20000510 - 20000611
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20000612
Years Contracted :                                   ;      
Date of Discharge:                                  20010525
Length of Service:                                  00 Yrs 11 Mos 14 Days Does not exclude lost time, if any.
Time Lost During This Period:                     
Days Unauthorized Absence:                              
Days Confinement:                                        

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 54
MOS:                                                   9971
Highest Rate/Rank:                                   LCPL

Performance Evaluation Averages (number of marks):
 P roficiency :                                         4.0 (1)
Conduct :                                              4.0 (1)

Awards and Decorations (as listed on the DD Form 214):
RIFLE SHARPSHOOTER BADGE



Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20010307 :        Counseling: Advised of deficiencies in performance and conduct . You have been diagnosed with r ight ankle sprain, shin splints, and syndosmatic injury that hinders your ability to train. N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20010320:        Applicant directed to voluntary leave for an indefinite period of time while his administrative discharge is reviewed.


Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation
20000614:        Recruit screening exam. No significant interval/non-disclosed medical history.

20000721:        Medical visit concerning right ankle pain past two weeks. Claims previous four instances of chronic inversion ankle sprains. Applicant advised on ankle training exercises.

20000725:        Medical visit concerning right ankle pain past two weeks.

20000914:        Medical visit concerning right ankle pain. No running chit issued.

20000920:        Applicant visits sick call complaining of ankle pain.

 20000922:        Sports Medicine and Reconditioning Therapy visit. Recommend 30 days of rehab and ankle brace.

20001012:        Sports Medicine and Reconditioning Therapy visit. Recommend light duty for 14 days.

20001019:        Sports Medicine and Reconditioning Therapy visit. No improvement from physical therapy noted. Recommend light duty for 14 days.

2001 1 022:        Sports Medicine and Reconditioning Therapy:
         Injury report: History: Applicant returns for follow up of ankle sprains and sy n dosmatic injury.
         Treatment to date: Aggressive physical therapy, SAC rehab 6 months. Same.
         Diagnosis: S/P Right ankle sprain, shin splints, syndosmatic injury.
          Plan: Referred to ortho pedic and has seen 3 physicians upon my referral to them. He returns after 5 months of SAC rehab and compliant physical therapy recommended by ortho. EPTE and he is a treatment failure. Recommend administrative separation.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                        20010314
Basis for Discharge :                                PHYSICAL

Least Favorable Characterization:                         
Commanding Officer’s Intended Recommendation :   
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 20010314
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                               

Recommendation of Commanding Officer (date):     (UNDER HONORABLE CONDITIONS) ( 20010314 )
SJA review (date):                                   NE FOUND IN RECORD      
Discharge directed by (date):     COMMANDING GENERAL, MARINE CORPS BASE, CAMP PENDLETON CA ( 20010430 )
Narrative reason directed :                                   PHYSICAL
Characterization directed:                                  (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:                         20010 5 25




Additional Information Considered by Board

 Type of d ocumentation submitted by t he Applicant and considered by the Board
        Document Type                                        #Pages
 Related to Period of Service Under Review :
          Service/Medical Record :                              120
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                       0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 14

Total Number of Pages:                              134

D escription of Other Documentation:
Privacy Release form for Senator D_ F_ (2 pages)
Congressional casework authorization form
Letter to applicant from Headquarters United States Marine Corps (2 pages)
Letter from Department of Veterans Affairs
Letter from Board for Correction of Naval Records
Letter from Department of Justice, State of California (4 pages)
Letter from Department of Veterans Affairs with decision of service connected compensation claim (3 pages)

Applicant’s Issues as Summarized by the Board:
 1. Discharge was due to physical disability incurred during initial term in service.

 Decisional Issues:
 The Board accepted Issue 1 for consideration.

Issue 1 ( ). When a Marine is involuntarily separated, an honorable characterization of service is appropriate only if the Marine’s service, notwithstanding the basis for separation, is otherwise so meritorious that any other characterization would be clearly inappropriate. A general (under honorable conditions) characterization is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. For Marines involuntarily separated, proficiency and conduct marks and lack of disciplinary action for substantiated misconduct are significant but not dispositive in determining characterization of service. The Board determined that the Applicant’s service was not so meritorious that a characterization as general (under honorable conditions) was clearly inappropriate. The Board also noted evidence in the record indicating that the Applicant may have perpetrated a fraudulent enlistment into the Marine Corps, in violation of Article 83 of the UCMJ. The Applicant, during his enlistment contract signing, denied that he had ever been rejected for enlistment by any branch of the Armed Forces. However, while on active duty during the separation physical, the Applicant admitted to health care providers that he had been denied entrance to the Army N ational Guard “three years ago” and the United States Army “two years ago” for an ankle injury. Additionally, no entries for waivers were noted on the enlistment contract for either “condition that existed prior to service’ or for “medical disqualification”. The Board advises the Applicant that violation of Article 83 is considered a serious offense for which a punitive discharge is authorized if adjudged at a special or general court-martial. Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

 None.
Pertinent Regulation/Law
A. Paragraph 6203, CONVENIENCE OF THE GOVERNMENT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 E ), effective 18 Aug 95 until 1 Sep 01.
B. 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 V, Para 502, Propriety and Para 503, Equity .

C. 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 83, Fraudulent enlistment, appointment, or separation.


ADDENDUM: Information for the Applicant
Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/ RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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