DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-LCpl, USMC
Docket No. MD02-00957

Applicant’s Request

The application for discharge review, received 020618, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Manchester, NH.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) did not travel; all personal appearance hearings are held in the Washington, D.C. area.  Additionally, the Applicant was informed that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I was discharge because of a condition not a disability.  I believe that I was a good Marine.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		971229 - 980713	COG

Period of Service Under Review:

Date of Enlistment:  980714		Date of Discharge:  010703

Length of Service (years, months, days):

	Active:  02  11  20
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  68

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4	Conduct:  4.2  [Extracted from SJA Memo of 
                                                                                     27 June 2001]

Military Decorations:  NMCAM

Unit/Campaign/Service Awards:  SSDR, Rifle Sharpshooter Badge

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority:  MARCORSEPMAN Par. 6203.2.

Chronological Listing of Significant Service Events:

000818:	Medical Board, Naval Medical, Clinic PH:  Diagnosis:  Mechanical Low Back Pain.  Recommend referral to the Physical Evaluation Board.

000922:	Counseled for deficiencies in performance and conduct (1 - failure to comply with a written lawful order; 2 - failure to remain at appointed place of duty; 3 - malingering).  Necessary corrective actions explained, including recommendation by competent medical authority to relieve the Applicant of normal duties and place him into an SIQ-status, sources of assistance provided, disciplinary and discharge warning issued.

001018:	Physical Evaluation Board found Applicant fit to continue on active duty.

010503:	Physical Medicine & Rehabilitation Service, Tripler Army Medical Center:  Applicant has been under care for his low back pain since initial evaluation on 001025.  By that time his work-up had revealed a disc problem that was irritating a nerve root that supplied his right lower extremity.  The pain that this disc problem caused made it extremely difficult for individual to participate in bending, impact, prolonged sitting, or aerobic activities.  His ability to perform in his duty assignment was and continues to be significantly limited by this condition. His diagnostic work-up continued under my care and revealed that his problem would most likely not be helped by surgery therefore conservative management to include rehab, medications, and activity modification was continued.  It is my impression that this patient's condition is aggravated by the physical stressors of his present duty requirements as demonstrated by the improvement of his condition after removing him from these stressors.  Further, it is most likely that his condition will not improved if he remains in this duty status.  I feel that his prognosis for recovery is generally good if he can be placed in an environment where he can remain active and control the physical demands laced on his back.

010507:	Counseled for administrative separation at the Convenience of the Government due to a Physical Condition not a Disability.  The Applicant was found Fit to Continue Active Duty through a Physical Evaluation Board, however, his limitations continued to impede his performance thereby limiting his potential for future service.  The Applicant's Command was in receipt of a Medical Officer Evaluation, dated 010503 from the Physical Medical and Rehabilitation Service at Tripler Army Medical Center.  Evaluation stated his condition can not and will not improve unless he is removed from his current duty status.   Further advised if separated under the provisions of MARCORSEPSMAN PARAGRAPH 1004 AND table -1-1 his characterization of service would be honorable.

010523:	NJP for violation of UCMJ Article 86:  On or about 010425, unauthorized absence from appointed place of duty; violation of UCMJ Article 92:  Disobeyed an order to be at Battalion at 0630.
Awarded forfeiture of $304.00 per month for 1 month (suspended for six months), restriction and extra duties for 14 days.  Not appealed.

010604:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of convenience of the government for a physical condition not a disability.

010604:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010607:	Commanding Officer recommended discharge with a characterization of general (under honorable conditions) by reason of convenience of the government for a condition no a physical or mental disability.  The factual basis for this recommendation was the diagnosis of mechanical low back pain.  Commanding Officer comments: "His conduct prior to the initiation of this discharge warrants a general discharge.  His NJP for UA and failure to obey an order, as well as declining professional performance substan-tiate this characterization of service....The Respondent's actions clearly indicate unsuitability for future military service; therefore, I recommend that the Respondent be expeditiously discharged."

010627:	SJA review determined the case sufficient in law and fact.

010702:	GCMCA (Commanding General, Marine Corps Base, Hawaii] directed the Applicant's discharge with a characterization of general (under honorable conditions) by reason of physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010703 with a characterization of general (under honorable conditions) by reason of convenience of the government due to condition not a physical or mental disability (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1:  The Applicant contends that his service record warrants an honorable characterization.  While the NDRB recognizes that the Applicant's service was honest and faithful, the service records that the Board reviewed showed significant negative aspects of his conduct that precluded the characterization of his service as honorable.  The Applicant's physical condition (not a disability) formed the basis of his processing for administrative separation, but the negative aspects of the Applicant's military record formed the basis of his characterization of service.  The nonjudicial proceeding, the counseling for deficiencies in performance and conduct, and the Commanding Officer comments within his discharge recommendation all indicate the equity of the Applicant's service characterization.  Relief on this basis is therefore denied.

Additionally, the Board, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if an error or inequity exists within the Applicant's period of enlistment.  The service and medical records that the NDRB reviewed showed the Applicant's separation process to be proper and equitable.  The Board found that the Applicant's physical condition did warrant administrative processing for discharge and that the Applicant's command acted according to Marine Corps directives.  Relief on this basis is denied.

The following is provided for the edification of the Applicant.  There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider an upgrade.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 P1900.16E, effective 18 Aug 95), paragraph 6203, CONVENIENCE OF THE GOVERNMENT

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023