ex-PFC, USMC
MD06-01107

Current Discharge and Applicant’s Request:

Application Received:  				20060815
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MARCORSEPMAN 6203.2
Last Duty Assignment/Command at Discharge:	SACO SOI TRNG CMD CAMLEJ NC

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

Decision: 

Date of Decision:					20070706
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of  the Characterization shall  UNCHARACTERIZED
By a vote of  the Narrative Reason shall remain CONDITION NOT A DISABILITY

Applicant’s Issues, as summarized by the Board:
1.  Change re-enlistment code. 
2.  To be able to reenlist.
3.  Characterization of service is inequitable.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20000511 - 20001016 
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				20001017
Years Contracted:  				;        
Date of Discharge:				20010713
Length of Service:				00  Yrs  08  Mos  27  Days
Time Lost During This Period:			
Days Unauthorized Absence:			     
Days Confinement:				     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						32
MOS:						9900
Highest Rate/Rank:				PFC

Performance Evaluation Averages (number of marks):
Proficiency:					4.1 (2) 
Conduct:					4.1 (2) 

Awards and Decorations (as listed on the DD Form 214):
RIFLE EXPERT BADGE

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

20010201:	Counseled concerning the following deficiency: your diagnosed physical condition not a disability: knee injury and ankle injury.  Necessary corrective actions explained, sources of assistance provided, and disciplinary and discharge warning issued.

20010530:	Counseled concerning the following deficiency: your deliberate concealment of a pre-existing condition of lower extremity pain following exercise.  Fraudulent enlistment in the Marine Corps as a Private and received payment under the enlistment. 

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

20010108:	Applicant on light duty for 30 days.

20010212:	Podiatry consult:  Applicant states he was seen by podiatry 2 years ago for foot pain.  

20010304:	Camp Geiger Sports Medicine Clinic:  Dr. notes that Applicant has had these pains all of his life.  States Applicant did not say anything about his foot braces or his lifelong ankle and leg pain upon enlistment.    

20010306:	Applicant on light duty for 30 days.

20010409:	Applicant waived Physical Evaluation Board.

20010409:	Naval Hospital, Camp Lejeune, North Carolina.  Applicant seen for follow up.  Underwent compartmental pressure test on 20010405 which confirmed diagnosis of exercise induced compartment syndrome.  Applicant reports B lower extremity pain with exercise (running) for entire life (EPTE).  Not mentioned on entrance physical.  Desires administrative separation.  Refuses further treatment for same after discussion of treatment options.
	Assessment: Exercise induced compartment syndrome, EPTE.
	Plan:  PEB waiver signed after lengthy counseling.
	Applicant will be recommended for administrative separation.
	Limited duty until discharged.
	Administrative separation letter written.

20010503:	Commanding Officer, Naval Hospital, Camp Lejeune  letter  recommending separation of Applicant due to fraudulent enlistment and Exercise Induced Compartment Syndrome.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Notification Procedure
Date Notified:					20010410     
Basis for Discharge:				PHYSICAL CONDITION NOT  A DISABILITY 
Least Favorable Characterization:			UNCHARACTERIZED
Commanding Officer’s Intended Recommendation:	UNCHARACTERIZED
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		20010410     
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			WAIVED
Obtain Copies	  			ELECTED
Submit Statement(s) (date)			WAIVED

Recommendation of Commanding Officer (date):	PHYSICAL CONDITION NOT A DISABILITY (20010607) 
SJA review (date):				       
Discharge directed by (date):	COMMANDING OFFICER, SCHOOL OF INFRANTRY, TRAINING COMMAND, CAMP LEJEUNE (20010712)
Narrative reason directed:				
Characterization directed:				
Date Applicant Discharged:			20010713

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 Under Review:
	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:	

Applicant’s Issues, as summarized by the Board:
1.  Change re-enlistment code. 
2.  To be able to reenlist.
3.  Characterization of service is inequitable.

Issues 1 and 2:  The Board determined that these Issues were not issues which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this issue. 

Decisional Issues:
The Board accepted Issue 3 for consideration.

Issue 3 (Equity).  By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service.  The Applicant's service record did not contain any unusual circumstances during his less than 6 months in the military prior to notification of separation to warrant a change of discharge to honorable.  The Applicant’s service was marred by one retention warning and a counseling entry notifying the Applicant that he had committed a fraudulent enlistment.  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.  Therefore the Board found his uncharacterized characterization appropriate.  Relief denied.    

The Applicant should be aware that, with respect to non-service-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge. 

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  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 and equitable.

Minority Opinion

None.

Pertinent Regulation/Law

A.  Paragraph 6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 30 May 2001 until present..

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.

C.  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 83, Fraudulent enlistment, appointment, or separation.

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