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

 ex-PFC, USMC
Docket No. MD99-01125

Applicant’s Request

The application for discharge review, received 990824, requested that the reason for the discharge be changed to Seeking reversal of discharge.  The applicant requested a documentary record discharge review.  The applicant listed a civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000424.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned impropriety in the narrative reason for separation.  The Board’s vote was unanimous that the narrative reason for separation shall change.  The discharge shall change to:  UNCHARACTERIZED/SECRETARIAL PLENARY AUTHORITY, authority: MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. (Applicant) is seeking removal of the defective enlistment & induction - fradulent enlistment characterization from his personnel records and seeks removal of the RE-3F reentry code so that he may reenlist into the Marines.

Documentation

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

Statement from applicant
Copy of Separation/Travel Pay Certificate dated May 5, 1998
Forty-two pages from applicant's service record (some duplicates)
Letter from applicant's parents dated May 14, 1998 (2 copies)
Copy of DD Form 214 (Member 1 and 4) (2 copies)
Copy of Order Expunging Record dated July 28, 1997 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980410 - 980426	COG

Period of Service Under Review:

Date of Enlistment:  980427		Date of Discharge:  980508

Length of Service (years, months, days):

	Active:    00  00  12
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  48

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  None			Conduct:  None

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  MARCORSEPMAN Par. 6204.3.

Chronological Listing of Significant Service Events:

980429:	Mental Health Consultation Report:  Reason for request Prior history of sodomy/moment of truth.  Patient denied present and past history of anxiety and depressive symptoms as well as current sexual thoughts impulses.  Psychiatric history: Saw family counseling at age 14 due to "I was sexually abused & I sexually abused someone else" (7 year old boy).  Counselor x 10 visits for 6 months.  Sexual abuse of 7 year old boy - oral sex/2 occasions of intercourse/genitalia fondling.  Father's best friend's son who was 17 - pt was 14 1-2 years.  Patient then abused his cousin age 6/7 for 1 year.  Patient went to court & was fined $250.00 and 6 months counseling.  Recommendation: Patient is presently psychologically fit for full duty and responsible for is behavior.

980501:	Commanding officer recommended discharge with a entry level separation by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.  The factual basis for this recommendation was moment of truth and not qualified for enlistment IAW Marine Corps Moral Policy.  SNR moral waiver was denied IAW MPPM 1130.77B. 

980505:	Counseled and understand I am not recommended for Reenlistment and have been assigned Reenlistment Code RE-3F by reason of Defective Enlistment - Fraudulent Enlistment.  Moral waiver denied.

980505:	Applicant notified of intended recommendation for discharge with a Entry Level Separation by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps due to your failure to receive a moral waiver.

980505:  	Applicant advised of his 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.

980507:	GCMCA [Commanding General, Marine Corps Recruit Depot, San Diego, CA] approved the applicant's uncharacterized service by reason defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980508 with an uncharacterized service by reason defective enlistment and induction due to a fraudulent entry (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 basis for the discharge was improper (C and D).

The Board found that the applicant, at the MOT, acknowledged that he, at 14 years of age, was convicted of a felony.  The Board also determined that the conviction was expunged prior to the applicant’s enlistment into the Corps.  According to the court order “the petitioner’s case shall be deemed never to have occurred and the petitioner may properly reply accordingly upon any inquiry in the matter”.  The applicant did not fraudulently enlist in the service, he complied with the directions of the Court. Relief granted.

The NDRB is unable to upgrade the discharge issued to the applicant.  To qualify for an honorable discharge the applicant must have served a minimum of 180 days.  The applicant only served 12 days.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual,(MCO P1900.16E), effective 18 Aug 9 until present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023