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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00873

Applicant’s Request

The application for discharge review was received on 20060614.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070329.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the discharge shall change to:  HONORABLE/CONDITION NOT A DISABILITY, authority: MARCORSEPMAN Par. 6214, Separation Code “JFV1.”

The NDRB did note administrative error(s) on the original DD Form 214.  Block 26, Separation Code, should read: “JFV1,” and Block 28, Narrative Reason for Separation, should read:  “CONDITION NOT A DISABILITY.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I – APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s issues, as stated:

Looking to upgrade so I can get G.I. Bill.

Documentation

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

Applicant’s DD Form 214 (Member 4)
Commander, 3rd FSSG endorsement, dtd December 4, 2002
Chronology of medical treatment
Excerpts from Medical Record (18 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19991102 – 20000730		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000731		Date of Discharge:  20021223

Length of Service (years, months, days):

Active:    02  04  23  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  85

Highest Rank:  LCpl				MOS:  1371

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  	4.2(4)*			Conduct:    4.3(4)*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, National Defense Service Medal, Sea Service Deployment Ribbon

*Applicant’s service record indicates marks of 3.3 and 3.4 on 5 occasions, including transfer marks from Recruit Training of 0.0 and 0.0.  The marks reflected in the Summary of Service above are calculated without those transfer marks.

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:

010420:	Counseling:  Advised of deficiencies in performance and conduct (Lack of judgment, discipline, and responsibility in the violation of Article 92, Disobeying an Order or Regulation – outside 600 mile radius on 010413.), necessary corrective actions explained, sources of assistance provided.

010523:	Counseling:  Advised of deficiencies in performance and conduct (Art 92: for underage drinking.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020122:	Medical evaluation by Hansen Branch Medical Clinic:
Had bone scan on right great toe.
	AXIS I:
	AXIS II:
	Assessment:
	(1) PFS
	(2) Pes Planus
	(3) Genu-Valga
	Plan:
	(1) Agree with Ortho.  Recommend Administrative Separation.  Proceed to your Admin Office to begin the process.

020130:	Medical evaluation by Hansen Branch Medical Clinic:
	19 years old male with multiple ortho problems here for test results of foot bone scan.
AXIS I:
	AXIS II:
	Assessment: 
	(1) Stress fracture base under (illegible) 2nd Metatarsal and old stress (illegible) fracture 4th – 5th Metatarsal.
	(2) Genu Valga.
	(3) Pes Planus.
	Plan:
	(1) Limited Duty Board.
	(2) Still Recommend Admin Sep.
	
020131:	Medical evaluation by Orthopedic Surgery, Naval Hospital Okinawa.
	Patient referred back by unit for physical therapy. 
	Assessment: PFDS (illegible) patellofemoral malalignment.  
	Plan:  If patient is unable to return to full duty after 8 mos LIMDU then recommend Admin Separation.  No further orthopedic evaluation required
	
020411:	Counseling:  Advised of deficiencies in performance (Physical deficiencies, your recent diagnosis of Patellofemoral Syndrome which interferes with your duties.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020605:	Counseling:  Advised of deficiencies in performance (Physical deficiencies, re-evaluation of diagnosis of Patellofemoral Syndrome confirms interference with your duties.), necessary corrective actions explained, sources of assistance provided, advised being administratively processed for separation.

021125:	Applicant notified of intended recommendation for discharge 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 your diagnosis of patella-femoral pain syndrome witch interferes with your duties, specifically, the ability to participate in rigorous exercises, conditioning hikes, and deployment.  Applicant informed the least favorable character of service possible was as general (under honorable conditions).

021125:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

021125:	Commanding Officer, 9th Engineer Support Battalion, recommended Applicant’s discharge with a general (under honorable conditions) by reason of convenience of the government due to a physical condition not a disability.

021204:	GCMCA, Commander, 3d Force Service Support Group 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.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021223 by reason of convenience of the government due to condition not a disability (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper, but not equitable in regards to the characterization (B and C).  

The Applicant indicated that his reason for seeking an upgrade was to get G.I. Bill benefits for his education.  For the Applicant’s edification, the NDRB did not base its decision to upgrade the characterization of service on the Applicant’s stated reason.  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.  Additionally, 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.  Had the Applicant’s discharge been proper and equitable, the Board would not have granted relief.

In the Applicant’s case, his discharge was proper.  The evidence clearly showed that he suffered from a condition not a disability, and that efforts to remediate his physical condition were not successful.  Regarding characterization of service, the Board determined from the record that the Applicant’s condition was not due to his own misconduct or negligence and that he attempted to remediate his condition.  There is no indication in the record that the Applicant’s performance of duty, including his duty to remediate his physical condition, was unsatisfactory due to apathy, neglect or indifference.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) 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 Board noted that the Applicant’s proficiency and conduct (pro/con) marks appeared to contain an administrative error which resulted in significantly lowering his overall average marks.  Without that error, the Applicant’s pro/con average marks were well within the normal marks associated with an honorable discharge.  The Board further determined that the 2 documented counseling entries in the Applicant’s record addressed relatively minor misconduct early in his service.  In light of the Applicant’s subsequent 1½ years of credible service but for his physical condition, the Board determined that these negative aspects of the Applicant’s performance did not outweigh the positive aspects of his military record.  Therefore, relief was granted.

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 additional evidence related to this 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 P1900.16F, effective 
01 September 2001 and Present), 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 V, Para 502, Propriety.

C.  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 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”.

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