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

FOR OFFICIAL USE ONLY

ex-Pvt, USMC
Docket No. MD05-00821

Applicant’s Request

The application for discharge review was received on 20050407.  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.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051020.  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 and/or from an attached document/letter to the Board:

“I did nothing wrong.  I was discharged because of medical reasons.  And in the med board it stated this.”

Representative submitted no issues.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

DD Form 149, dtd January 6, 2005
Letter from Board for Correction of Naval Records, dtd March 15, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19971103 - 19971116	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19971117		Date of Discharge:  19990205

Length of Service (years, months, days):

Active:    01  02  19  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  3 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  67

Highest Rank:  PFC				MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.6 (5)				Conduct:  3.6 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge

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:

980918:	Medical Evaluation Board report.
	Diagnosis:  Mechanical low back pain with unrelated L5 disc bulge.
	Prognosis:  Poor for continued service in the military.
	Recommendation:  That this member (Applicant) be separated medically from further service with the United States Marine Corps.  The case is being referred to the Central Physical Evaluation Board.

981001:	Medical Board Statement of Patient Concerning the Findings of a Medical Board, Naval Medical Clinic, Pearl Harbor.  Applicant acknowledged by signature that he was informed that it was the recommendation of the Medical Board the his case be referred to the Director, Naval Council of Personnel Boards.  The Applicant chose not to submit a statement in rebuttal.  

981009:	Applicant to unauthorized absence at 0630 on 981009.

981013:	Applicant from unauthorized absence at 0530 on 981013 (3 days/surrendered).

981021:	NJP for violation of UCMJ, Article 86:
	Specification: UA (AWOL): fr 0630, 981009 to 0530, 981013.
	Violation of UCMJ, Article 121: Wrongful appropriation: took without permission $275.00 worth of clothes on 981006.
	Award:  Forfeiture of $463 per month for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in service record.

981021:	Counseling:  Advised of deficiencies in performance and conduct (Your MISCONDUCT; (unauthorized absence, wrongful appropriation) on 6 Oct 98 and 9-13 Oct 98.), necessary corrective actions explained, sources of assistance provided.

981217:	Non-medical assessment of the Applicant provided by Commanding Officer, Echo Company, 2d Battalion, 3d Marines.  Applicant has not been in a full duty status since 19980501.  Applicant is currently working out of his specialty because of the medical condition.  Applicant did not pass his most recent PFT.  The Applicant has followed the therapy regimen prescribed by medical authorities.  The Applicant’s condition causes him to be away from his duties for treatment, evaluation, and recuperation.  The Applicant’s medical condition precludes him from firing a weapon. The Applicant is not worldwide assignable.  The Applicant does not have good potential for continued service due to his present physical and mental condition.  The Commanding Officer does not recommend that the Applicant be retained on active duty in a limited duty status to allow sufficient time for recovery.

981217:	Recommendation for Administrative Action, from Battalion Surgeon, 2d Battalion, 3d Marines to Commanding Officer: A medical board has been convened.  Applicant has been found “fit for duty” which means he has a physical condition not considered a disability.  Applicant is still unable to perform his duties as a Marine because of his low back pain.  I recommend he be considered for administrative action.

UNDATED:	Acknowledged understanding of eligibility but not recommended for promotion to Private First Class for the month of December 1998 due to my recent NJP.  Applicant chose not to make a statement.

981228:	Counseling:  Advised of deficiencies in performance and conduct (Your PHYSICAL CONDITION; [specifically lower back problems.]  This condition has kept you from performing your duties as a Marine.  You are directed to report to the Bn Aid Station for further evaluation of your lower back problem.  You have 30 days to overcome this deficiency.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990104:	Letter regarding Medical Administrative Separation from Battalion Surgeon, 2d Battalion, 3d Marines, to Commanding Officer.  Private First Class K_ (Applicant) has been diagnosed with mechanical lower back pain, a physical condition not considered a disability.  He does not meet the requirements for medical discharge, as determined by the Physical Evaluation Board, Washington, D.C.  His condition has not responded to therapy.  His is not capable of performing the duties of his MOS.  He has thirty days to correct this deficiency.  Ensure that a follow up evaluation is conducted at the end of this period.  He meets the requirements for administrative separation per paragraph 6203.3 of the reference.
	Ensure that Private First Class K_ (Applicant) is properly counseled per paragraph 6203.3 of reference (a).  Separation processing may not be initiated until a 6105 entry has been made.
	If at end of the required period, Private First Class K_ (Applicant) overcomes his condition, ensure that a follow up 6105 entry is made to note such.

990115:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of convenience of the government due to a physical condition not a disability. The factual basis for this recommendation was the Applicant’s diagnosis of having mechanical lower back pain.  

990115:	Applicant advised of rights and having consulted with counsel, elected to waive all rights.

990119:	Commanding Officer, 2d Battalion, 3d Marines, recommendation to Commanding Genreal, Marine Corps Base Hawaii,  via Commanding Officer, 3D Marines (REIN), 3D Marine Division (-) (REIN).  Applicant’s discharge with a general (under honorable conditions) by reason of convenience of the government due to a physical condition not a disability.   Commanding Officer’s comments:  “Because of the physical condition of his back, Private First Class K_ (Applicant) is unable to perform duties as an infantryman.  Since joining the battalion in April 1998, Private First Class K_ (Applicant) has never participated in a conditioning hike.  He has only been on one field operation, to the Kahukus Training Area in August 1998.  He was medically evacuated from the Kahukus on the second day of training when his back seized up.  I recommend he be discharged expeditiously.
Private First Class K_ (Applicant) has been the subject of one battalion level non judicial punishment for unauthorized absence and wrongful appropriation.  His average in service proficiency and conduct marks are 3.8/3.8.  I recommend his characterization of service be general (under honorable conditions).”

990120:	Commanding Officer, 3D Marines (REIN), 3D Marine Division (-) (REIN), forwarded, recommending approval recommended of Applicant’s discharge with a general (under honorable conditions) by reason of convenience of the government due to a physical condition not a disability.

990121:	SJA review determined the case sufficient in law and fact.

990122:	Commander, Marine Corps Base Hawaii, directed the Applicant's discharge with a general (under honorable conditions) by reason of convenience of the government due to a physical condition not a disability.

990129:	Counseling:  Advised of deficiencies in performance and conduct (Your MISCONDUCT (uttering bad checks).  You are directed to have no further involvement of a discreditable nature with military/civilian authorities or any further violations of the UCMJ.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990201:	NJP for violation of UCMJ, Article 134: Uttering bad checks; uttered seven checks to MWR for a total of $373.00 without sufficient funds.
	Award:  Forfeiture of $223 per month for 1 month, restriction for 4 days,.  Not appealed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990205 by reason of convenience of the government due to condition not a disability with a service characterization of general (under honorable conditions) (A and 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).  

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant contends that he “did nothing wrong”, that he was “discharged because of medical reasons”, and that “the med board stated this.”  According to the MARCORPSEPMAN paragraph 6203.2, a Marine may be separated for the convenience of the government for reasons that include a physical condition not a disability.   Whenever a Marine’s performance deteriorates or has an adverse effect on others in the unit, Commanding Officers and subordinate leaders will try to determine the cause.  When the command suspects a physical condition interferes with the Marine’s effective performance of duty, the Marine should be referred to the appropriate medical authority.  If examination by a medical officer confirms that the Marine is suffering from a physical condition apparently beyond the individual’s control and indicates that the condition is not a disability, separation proceedings will be initiated.  On 19981217, the Battalion Surgeon reported that a medical board had found the Applicant fit for duty and that he had a physical condition not considered a disability.   On 19990104, the Battalion Surgeon reported that the Applicant has been diagnosed with lower mechanical back pain, a physical condition not a disability.  The Battalion Surgeon further stated that the Physical Evaluation Board had determined that the Applicant did not meet the requirements for a medical discharge.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that the Applicant’s discharge was regular in all respects.  Relief denied.

When the service of a member of the U.S. Marine Corps has 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, a non-recommendation for promotion,   and 2 nonjudicial punishment proceedings for violations of Articles 86 (UA), 121 (wrongful appropriation of value of more than $100.00), and 134 (making and uttering worthless checks) of the UCMJ.  According to the UCMJ, violations of Articles 121 and 134 are considered serious offenses.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief 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.  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 until 31 Aug 2001), 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 121, wrongful appropriation of value $100 or more and Article 134, making, uttering worthless checks.

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