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

  ex-PFC, USMC
Docket No. MD04-01440

Applicant’s Request

The application for discharge review was received on 20040913.  The Applicant requests the 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 20050516.  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 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.  “I am requesting this upgrade of discharge because my discharge was due to medical conditions beyond my control.  Other than this condition there was only one negative occurrence in my 40 months of service.  This isolated incident occurred just before my discharge and therefore was at the fronts of everyone’s minds.  I was told this occurrence was not the full basis of their decision (my CO’s) however it was the only one to consider.  In closing I want this discharge changed so that I may use my GI Bill to attend college and continue to better myself and career.”

Documentation

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

Applicant’s DD Form 214 (Member 4 and 1)
Applicant’s summary of Form 293
3 pages from the Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000303 - 000314	COG

Period of Service Under Review:

Date of Enlistment:  000315		Date of Discharge:  030708

Length of Service (years, months, days):

	Active:  03  03  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  82

Highest Rank:  LCpl			MOS:  4066

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3  (7)		Conduct:  4.2  (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NDSM

Days of Unauthorized Absence:  None

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:

011212:	Counseled for deficiencies in performance and conduct.  [Unauthorized absence for 90 minutes.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020104:	Counseled for deficiencies in performance and conduct.  [Assignment to weight control.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

021206:	General Medical Officer, Group Aid Station recommended the Applicant’s administrative separation.  Comments:  Pt has been evaluated by multiple specialists, including General Surgery, Orthopedic Surgery, Sports Medicine, and Pain Clinic, without resolution of symptoms and without recommendation for surgery.  His diagnosis does not warrant a PEB but his condition precludes him from RETURN TO FULL DUTY.  Based on the information above it is recommended that [Applicant] be processed for administrative separation for a physical condition not a disability.

030318:	Applicant notified of intended recommendation for discharge with the least favorable characterization of general (under honorable conditions) by reason of convenience of the government for a condition not a disability.

030321:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030321:	Commanding Officer recommended the Applicant’s general (under honorable conditions) discharge by reason of convenience of the government for a condition not a disability.  The recommendation was based on [Applicant’s] diagnosed condition of Right Hip Flexor Tendonitis. 

030402:	NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1:  On 030214 fail to obey a lawful order by accessing obscene materials on a government computer.
Specification 2:  On 030220 fail to obey a lawful order by accessing obscene materials on a government computer.
Award:  RIR to E-2, restriction and extra duties for 14 days.  Not appealed.

030624:	Commander, II Marine Expeditionary Force directed the Applicant's discharge with a general (under honorable conditions) character of service by reason of condition not a disability.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030708 with a general (under honorable conditions) character of service by reason of convenience of the government due to condition not a 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 Applicant states that he is requesting an upgrade to his character of service because he was discharged “due to medical conditions beyond [his] control.”  The Applicant was diagnosed by competent medical authority as having a condition not a disability that precluded him from returning to full duty on 20021206.  However, the Board could find no evidence in the record or in the documents and statements submitted by the Applicant to suggest that Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.  When a Marine’s service 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’s service was marred by misconduct, substantiated by his nonjudicial punishment proceedings for violations of Article 92 of the UCMJ. The Applicant was also counseled for deficiencies in performance and conduct for a violation of Article 86 of the UCMJ and for his placement on weight control.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

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 on the propriety and equity of the discharge.  

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.  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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  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 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 “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