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

  ex-LCpl, USMC
Docket No. MD04-00717

Applicant’s Request

The application for discharge review was received on 20040325.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041008.  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)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority: MARCORSEPMAN Par. 6203.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My DD214 section 26, Separation Code JFV1 – Discharge because of a physical condition which is not disabling. involuntary, USMC. Under MILPERSMAN 1910-120 section 4.  Characterization of Service -States that an Honorable is warranted.  MILPERSMAN 1910-304 further states than an Honorable Discharge shall be given when the quality of the member’s service generally me the standard of acceptable conduct and performance for naval personnel.  Marine Corps code states a Marine having final average conduct mark of 4.0 and a minimum final proficiency mark of 3.0 shows proper military behavior.  My final PRO 4.4 and CON 3.9 exceeds the required minimum for an Honorable Discharge.  I was administratively discharged for the convenience of the government by reason of physical condition.  No significant negative aspects of my conduct or performance of duty outweighed my positive service record and therefore do not warrant my current General Under Honorable Discharge (MILPERSMAN 1910-304 section 1).  Due to misinformation given to me by my commanding officers I was allowed to leave base and begin work.  I was charged with being UA during my release for administration separation.  I was forced to seek assistance from the Honorable C_ P_ House of Representative in clearing up the matter and as stated in a letter from L. E. W_, Special Correspondence Manpower and Reserve Affairs Department cleared of all charges and received an apologize for the inconvenience.  In addition to the letter by Mr. W_, my BNSGTMAJ C. M. T_ stated that I was discharged untimely due to an administrative error.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member maintained satisfactory PRO/CON markings of 4.4/3.9 and earned the NDSM, SSDR and SRB.  He had psuedofoleculitis barbae (PFB) that was unresponsive to treatment and on 970606 was recommended for administrative separation by the Battalion Surgeon.  He did not have any NJPs.  He did receive 2 counseling entries regarding his work performance.  His immediate chain of command recommended separation with a GD.  Following due process notifications, he was discharged Under Honorable Conditions (General) due to a condition which interferes with the performance of duty as authorized by MARCORSEPMAN, Par. 6203.2a.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because his overall performance and conduct satisfies naval guidance for an HD.  He has submitted copies of NAVMILPERSMAN 1910-304 in support of his contentions.  While naval regulations do not apply to Marine Corps personnel, our interpretation of his issue that his SRB supports an HD appears clear. 

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

MILPERSMAN 1910-304, dated August 22, 2002
MILPERSMAN 1910-120, dated August 22, 2002
Pro/Con assignment page
Honorable discharge criteria page
Letter from Special Correspondence Manpower and Reserve Affairs Department to House of Representative, dated November 26, 1997
Applicant’s DD Form 214
Letter from Battalion Surgeon, dated June 6, 1997
Appointment of Veterans Service Organization as claimant’s representative, dated March 10, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		941017 - 950716	COG

Period of Service Under Review:

Date of Enlistment:  950717		Date of Discharge:  971120

Length of Service (years, months, days):

	Active:    02  04  04
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  59

Highest Rank:  LCpl			MOS:  2542

Final Enlisted Performance Evaluation Averages (number of marks):*

Proficiency:  4.4 (1)			Conduct:  3.9 (1)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SRB

Days of Unauthorized Absence:  34

*Marks extracted from supporting documents submitted by the Applicant 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/CONDITION NOT A PHYSICAL OR MENTAL DISABILITY, authority:  MARCORSEPMAN Par. 6203.2.

Chronological Listing of Significant Service Events:

970311:	Counseled for deficiencies in performance and conduct.  [Not recommended for promotion due to poor performance of duties and improper use of government computer for personal use.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970606:	Battalion Surgeon recommended administrative separation.  Applicant has been treated for approximately twelve weeks in accordance with treatment protocol for PFB.

970630:	Applicant informed eligible but not recommended for promotion to Corporal for the promotion quarter (July to September 1997) because of my poor work performance.

970717:	NJP for violation of UCMJ, Article 92:
Specification: Derelict in the performance of duties by willfully failing to stay awake during fire watch on 970605.
Violation of UCMJ, Article 113:
Specification: Sleeping on post on 0230, 970605.
Awarded forfeiture of $244.00 per month for 1 month, correctional custody for 7 days.  Forfeiture suspended for 6 months.  Not appealed.

970812:	Counseled for deficiencies in performance and conduct.  [Failure to follow rules and regulations governing the PFB program.  You have been treated for PFB and placed on a no shaving chit for the 8th time.  Even with 8 times of no shaving chits, you have failed to follow the directions set forth by the PFB program.  You are not to shave your beard into a neatly trimmed Mr. T look.  You are required to keep the beard no longer than a quarter of an inch all around.  Specifically, you are not to shave your neck area where the ingrown hairs have created bumps.  Failure to follow the guidelines of the PFB chit will not clear up the problem and shows your lack of attention to detail.  Even though you have been recommended for an administrative separation due to PFB, until that happens you will abide by the rules and you are expected to be a Marine until you are administratively separated.  I will not tolerate any further disregard for rules and regulations.  Consider this a Formal Counseling.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

970908:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of convenience of the government for a physical condition not a disability.

970908:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970908:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of convenience of the government for a condition not a physical or mental disability.  The factual basis for this recommendation was Applicant’s pseudofolliculitis barbae. 

970923:	Applicant to unauthorized absence 0730, 970923.

971027:	Applicant surrendered from unauthorized absence.  Charges of unauthorized absence dropped.

971119:	GCMCA [Commanding General, II Marine Expeditionary Force] directed the Applicant's discharge with a general (under honorable conditions) by reason of a physical condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971120 with a general (under honorable conditions) by reason of convenience of the government due to a condition not a physical or mental disability (A).  The Board presumed regularity in the conduct of governmental affairs (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).

Issue 1.  The characterization of service for a Marine is assigned based upon reference (A) below, not Navy MILSPERSMAN Articles.  A characterization of service of under honorable conditions (general) 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 award of nonjudicial punishment (NJP) on one occasion, adverse counseling entries on other occasions, an extended period of unauthorized absence, and a conduct evaluation average that is presumed to be below 4.0.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  Relief denied.

Issue 2.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred during the Applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate his performance and conduct while on active duty sufficient to warrant an upgrade to his discharge.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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 P1900.16E, effective 18 Aug 95 until 31 Aug 2001), paragraph 6203, CONVENIENCE OF THE GOVERNMENT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023