DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1468-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) USECDEF Memo of 25 Jul 18 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 with attachments 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Marine Corps, filed the enclosure requesting to upgrade his characterization of discharge to honorable and to change his reentry/reenlistment code. 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 5 March 2020, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of his naval service records, and applicable statutes, regulations, policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although the enclosure was not filed in a timely manner, it is in the interests of justice to review the application on its merits. c. The Petitioner initially enlisted in the Marine Corps and began a period of active service on 28 August 2000. On the Petitioner’s pre-enlistment report of medical history he checked “No” to ever having any (1) Swollen or painful joints; (2) Bone, joint or other deformity; and (3) “Trick” or locked knee. His pre-enlistment physical noted no musculoskeletal abnormalities or defects. d. Petitioner’s multiple medical record entries beginning in initial recruit training documented significant and chronic right knee pain. A medical record from 6 November 2000 noted that Petitioner started having knee pain and had to drop out of 5 mile hump (hike) due to increasing pain, and that his knee gave out and he went down and his knee locked in a flexed position. The Petitioner’s rated his pain as sharp and 7 of 10 on a pain scale. The medical record also documented the fact that the Petitioner suffered a knee cap contusion 6 years prior to entering the service, and that based on the Petitioner’s own assessment, he was never 100% after the injury. e. Following multiple subsequent medical visits related to his knee, on 22 February 2001, the Petitioner was determined to be a treatment failure. The SF-600 Injury Report noted the following: “This patient is a treatment failure. No further treatment options are available at this time. Member is to return to full duty. If member is unable to train and returns for same condition, member is recommended for administrative separation for thegood of the USMC.” f. However, the Petitioner required subsequent medical treatment for the same condition and he was again determined to be a treatment failure. The SF-600 Injury Report dated 13 March 2001 recommended Petitioner’s administrative separation: “This patient is a treatment failure. No further treatment options are available at this time. Member is recommended for administrative separation for thegood of the USMC.” The correspondingmedical record entry noted that Petitioner had his knee problem for the last 4 months, and returned to medical due most recently due to an inability to complete a 3 mile hike. g. On 16 March 2001, the Petitioner received and signed a “page 11” counseling entry documenting his diagnosis for “knees/patella fermoral pain syndrome” that hindered his ability to train. The Petitioner chose not to submit a written rebuttal statement. h. On 2 April 2001, Petitioner was notified of and administrative action to separate him from the naval service for convenience of the government due to a physical condition not a disability (as a result of being diagnosed as a treatment failure due to his patellofemoral pain syndrome). The Petitioner waived his right to consult with counsel and submit a rebuttal statement. Ultimately, the Petitioner was discharged on 4 May 2001 with a general (under honorable conditions) characterization of service and assigned an “RE-4B” reentry code. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request merits partial relief, given the totality of his circumstances. Additionally, the Board reviewed his application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. In this regard, theBoard determined that Petitioner’s assigned reentry/reenlistment code was erroneous and unduly harsh given his circumstances and creates an unnecessary negative inference. TheBoard noted that the “RE-4B” reentry code is assigned in Marine Corps cases when there is a military or civil record of in-service drug involvement and there is no potential for further service. ThePetitioner’s case does not involve unlawful drug use. Accordingly, the Board determined a change to Petitioner’s reentry/reenlistment code is warranted to “RE-3P.” This reentry code corresponds to: “failure to meet physical/medical standards,” and is the appropriate designation in cases involving a “condition (not physical disability) interfering with the performance of duty,” absent any evidence to the contrary. The Board noted that the “RE­3P” reentry code may not prohibit reenlistment, but requires that a waiver be obtained. Recruiting personnel are responsible for determining whether Petitioner meets the standards for reenlistment and whether or not a request for a waiver of the reentry code is feasible. The Board, however, did not find a material error or injustice with the Petitioner’s general characterization of service. The Board carefully weighed all potentially mitigating factors, including Petitioner’s contentions that he felt that the medical officer that was treating him did not give him the proper treatment to fix the reason for his discharge, and that he felt that his discharge was wrongfully given. However, the Board found that his contentions and mitigating factors were not sufficient to warrant changing his discharge characterization. The Board noted that the record reflected that Petitioner sustained a knee injury six years prior to enlisting in the Marine Corps, however, he expressly denied experiencing any related injuries or orthopedic issues on his official enlistment medical documentation. The Board also noted that there is no evidence in the record, and the Petitioner provided none, that he received improper or inadequate medical treatment. Accordingly, the Board concluded that your current characterization does not reflect an error or injustice that merits corrective action. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an error warranting the following corrective action. That Petitioner’s reentry/reenlistment code be changed to “RE-3P” on his DD Form 214 with a discharge effective date of 4 May 2001. That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 16 January 2019. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.