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

 ex-LCpl, USMC
Docket No. MD05-00208

Applicant’s Request

The application for discharge review was received on 20041110.  The Applicant requests the 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 20050330.  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)/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. “ My discharge was due to a physical condition.  This physical condition was not present before I enlisted in the USMC.  Due to my physical condition I am no longer able to perform my duties in the construction field.  I am going to school to become a police officer and am needing my education benefits from my MGIB.  This is the reason I am needing an upgrade on my discharge to honorable.  As shown in Medical Reports when I enlisted I was in good health with no back problems.  When I was discharged I had constant back pain and was unable to perform my duties in the military. Also I was told I would need further treatment from the VA.”

Documentation

In addition to the service record (the Notification of Separation, Statement of Awareness and the Commanding Officer Recommendation is not legible), the following additional documentation, submitted by the Applicant, was considered:

Eight pages from Applicant’s medical record
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		960807 - 960915	COG

Period of Service Under Review:

Date of Enlistment:  960916		Date of Discharge:  990111

Length of Service (years, months, days):

	Active:  02  03  26
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  54

Highest Rank:  LCpl			MOS:  1345

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (7)		Conduct:  4.5 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  4

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:

980819:	Medical evaluation by Sports Medicine Department: SNM is recommended for an administrative discharge/separation from the USMC, in accordance with MCO 1900.16, for reason of “Physical Condition Not Disability.”   SNM has been evaluated and treated by this department for eight months, for the following condition: Degenerative Disc Disease, L3-L4 (DNEPTE).  SNM has had repeated light duty periods and rehabilitative modalities.  There had been little or no improvement of his condition during this treatment/rehabilitative period.  Member states he is still unable to perform full duties as a Marine.  Medical Board (PEB) not warranted at this time.

981104:	NJP for violation of UCMJ, Article 86: Did on or about 0600, 980828, without authority, absent himself from his unit, to wit: Spt Co, 8TH EngrSptBn, 2d FSSG, located at CamLej, NC, and did remain so absent until on or about 0715, 980901 (4 days/S).
Awarded forfeiture of $568.00 pay per month for 1 month.  Not appealed.

981124:	Counseled for deficiencies in performance and conduct.  [Physical condition which is not considered a disability, specifically degenerative disc disease]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

981215:	SJA review determined the case sufficient in law and fact.

990106:	GCMCA [Commanding General, 2d FSSG] directed the Applicant's discharge with a general (under honorable conditions) by reason of physical condition not a disability.

Partial discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990111 with a general (under honorable conditions) by reason of convenience of the government due to condition not a physical or mental disability (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  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.

A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on one occasion for unauthorized absence.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

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 until 31 Aug 2001), 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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.

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