ex-PFC, USMC
MD06-00997

Current Discharge and Applicant’s Request:

Application Received:  				20060725
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MARCORSEPMAN 6203.2
Last Duty Assignment/Command at Discharge:	hqsptBN, soi, camp pendleton, ca

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED     
	Characterization change to:		
	Review Requested:			
Representation:  					 DESIGNATED

Decision:

Date of Decision:					20070608
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20000602 - 20000702	COG
Active:   NONE		               		     

Period of Service Under Review:
Date of Enlistment:  				20000703
Years Contracted:  				;        
Date of Discharge:				20010523
Length of Service:				00  Yrs  10  Mos  21  Days (does not exclude lost time, if any)
Time Lost During This Period:			      
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						36
MOS:						9971
Highest Rate/Rank:				PFC

Performance Evaluation Averages:
Proficiency / Conduct (number of marks):		4.4 (1)	4.4 (1)
	
Awards and Decorations (as listed on the DD Form 214):  RIFLE SHARPSHOOTER BADGE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20010104:	Head, Podiatric Medicine Clinic, Sports Medicine Department, Branch Medical Clinic, MCRD San Diego recommended to Commanding Officer, Third Recruit Battalion  that Applicant’s Military Occupational Specialty be changed due to stress fracture of the right tibia.

20010412:	Medical Officer, Sports Medicine Center letter to Commanding Officer, Student Administration Company, School of Infantry.  Medical Officer comments:  This patient (Applicant) is a treatment failure.  A thorough review of his medical records reveals he is refractory to our best therapeutic modalities.  He is recommended for administrative separation for the benefit of the United States Marine Corps.

20010412:	Counseling:  Advised of deficiencies in performance and conduct (You have been diagnosed with Pes Planus that hinders your ability to train).  Necessary corrective actions explained and sources of assistance provided. Advised being administratively separated.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20010412:	Sports Medicine and Reconditioning Therapy Injury Report:
	Diagnosis: Pes Planus, shin splints, metatarsalgia calcaneal cuboid syndrome, tendonitis PT, (illegible)…
	Plan: Pt has exhausted conservative care.  He has attempted all therapy compliantly.  He has severe pes planus which is uncontrolled with consecutive care.  Surgical pes planus isn’t an option - this would involve fusing joints and unable to be a grunt.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				NOTIFICATION PROCEDURE
Date Notified:					20010425
Basis:			CONVENIENCE OF THE GOVERNMENT DUE TO 
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		20010425
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			
						
Recommendation of Commanding Officer (date):	 (UNDER HONORABLE CONDITIONS (20010425)
SJA review (date):				NOT FOUND IN RECORD
Separation Authority (date):			COMMANDING GENERAL, MCB CPCA (20010510)
Narrative reason directed:				
Characterization of directed:			GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20010523

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				2
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				2

       Description of Other Documentation:  None
            

Applicant’s Issues as Summarized by the Board:
1.   No misconduct during service so characterization of service should be honorable.

Decisional Issues:

Issue 1 ().  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 is correct in asserting that there is no misconduct documented in his record.  However, “significant negative aspects” of a member’s conduct or performance of duty is not limited to only misconduct, and the lack of misconduct, by itself, does not necessarily mean that a characterization of service as general (under honorable conditions) is improper or inequitable.  Therefore, relief is not warranted on the mere fact that the Applicant had no documented misconduct.

However, in conducting its review, the Board determined from the record that the Applicant’s diagnosis of pes planus was accurate, that he did not contribute to creating the condition, that he was compliant with all medical and therapeutic efforts to overcome his condition, that discharge was appropriate, that under the circumstances of the his case any “significant negative aspects of his conduct or performance of duty” were related to the physical  limitations of his condition and not attributable to any misfeasance, malfeasance, negligence or dereliction on his part, and that the rest of his service was within acceptable standards of performance and conduct.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper but not equitable.  Therefore, relief was granted.

Minority Opinion

None.

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 August 1995 until 31 August 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, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  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.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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