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

  ex-PFC, USMC
Docket No. MD03-01180

Applicant’s Request

The application for discharge review was received on 20030620.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  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 four to one 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 stated

Applicant’s issues, as stated on the application:

“1.  In addition to the request for upgrade of discharge specified in Item 3, I also request that my re-enlistment code be changed from RE-4 to RE-3 or better.”

“2.  The physical condition which I was discharged for has since improved greatly (see Document 1, attached).  My civilian doctors have cleared my previous injury and don’t see any reason for concern.  I had 2 appointments to check out my shoulders.  The first was 7 mon after date of discharge, doctor said it was fine.  The second appointment was 20 (twenty) months after date of discharge, once again the doctor cleared it.  (Note; each appointment was different doctors.)”

“3.  To further support my request of upgrade of discharge and Re-entry code, I have been working construction under the employment of my brother James Chamberlin.  This work has been extremely physically demanding on my shoulders, requiring to lift large amounts of lumber and tools and other times that are very heavy.  And my shoulders have held up very well.  I have not had any problems or any pain from physical labor.  This just supports the doctors reports that I am not at risk of any shoulder problems.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“4.  (Equity Issue) This former member opines that his overall conduct and performance of duty warrants a fully honorable characterization of service.”

“5.  (Equity Issues) This former member that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post service conduct, in assessing the merits of this application.”

Documentation

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

Copy of DD Form 214
Patient Evaluation dtd 010122
Patient Evaluation dtd 011003
Ltr from D_ G_ dtd 030722
Ltr from K_ L_ dtd 030721
Ltr from M_C_ dtd 030803
Ltr from A_C_ dtd 030803
Ltr from J_S_ not dated
Copy of Voluntary Leave Orders

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		990616 - 991012	COG

Period of Service Under Review:

Date of Enlistment:  991013		Date of Discharge:  000615

Length of Service (years, months, days):

	Active:  00  08  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (2)		Conduct:  4.3 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

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:

000126:	Medical diagnosis: “Bilateral shoulder instability.”

000225:	Recommended for psychological consult.  Applicant complained of poor appetite, depressive symptoms, not sleeping well, unhappy with Marine Corps and wants out.  Applicant displayed mild suicidal ideations with no homicidal ideations.

000328:	Psychological consult diagnosis: “Situational depression.”	

000411:	Medical evaluation by Sports Medicine and Reconditioning Therapy:  “THIS PATIENT IS A TREATMENT FAILURE.  NO FURTHER TREATMENT OPTIONS ARE AVAILABLE AT THIS TIME. MEMBER IS TO RETURN TO FULL DUTY.  IF MEMBER IS UNABLE TO TRAIN AND RETURNS FOR SAME CONDITION MEMBER IS RECOMMENDED FOR ADMINISTRATIVE SEPARATION FOR THE GOOD OF THE USMC.”

000518:	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.

000518:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000518:	Commanding officer recommended discharge with a general (under honorable conditions) by reason of convenience of the government for a condition not a physical or mental disability.  Commanding Officer’s comments, “As a result of numerous medical complaints to medical authorities regarding shoulder pains, Private First Class C_ was re-evaluated and diagnosed by medical authorities with instability of right shoulder, left and right rotator cuff tendonitis.”

000602:	GCMCA [CGMCB Camp Pendleton] directed the Applicant's discharge 
with a 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 20000615 with a 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.   Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

Issues 2-3.  The Board is pleased that the Applicant’s physical difficulties appear to have healed and that he is having no physical maladies related to the condition for which he was discharged.  Nonetheless, the NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.   After months of physical therapy, the applicant’s medical diagnosis was treatment failure.  The applicant's DD Form 214, Block 26, Separation Code, indicates he was separated for a condition, not a disability, which interfered with the performance of duty.  No other Separation Code, or Narrative Reason for Separation could more clearly describe why the applicant was discharged.  The contention that the physical condition no longer exists or has been overcome does not provide a legitimate basis to revise official records that were accurate at the time of issuance.  To change the Separation Code, or the Narrative Reason Separation would be inappropriate.  Relief denied.

Issues 4-5.  The Applicant’s discharge was at the convenience of the government for a condition, not a disability, which interfered with the performance of duty.  MCO P1900.16 requires the characterization of service be as directed by the separation authority.  The Commanding General, Marine Corps Base Camp Pendleton directed the Applicant’s characterization as general under honorable conditions.  To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.  Relief denied.

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 any claims of post-service accomplishments or any other evidence related to his 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 P1900.16E, 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