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

ex-PFC, USMC
Docket No. MD01-00348

Applicant’s Request

The application for discharge review, received 010129, requested that the characterization of service on the discharge be changed to honorable or general under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to receiving the application, the applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity in the characterization of the applicant’s service.  The Board’s vote was four to one that the character of the discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

Issues

1.  I was given an Other than Honorable discharge for not telling the Marine Corps about a steel rod in my left leg and a very weak left knee.  This type of discharge prevents me from enlisting in the Navy. I will not make the same mistake.  I still very much want to be in the service.  I have no legal documents or official statements to submit as addition issues except for a desire to be in the military.  On the chance that it might help, I'm also submitting letters from friends and family with additional reasons for the upgrade of my discharge.  They will not be changed from how they write them and I have not coached them in what to say.  They only know I want to get back in and agree that I should.

Please send a reply as soon as possible.  Thank you very much for your time.

2.We contend that this type of separation is excessively harsh and ask that it be changed to honorable or General Under honorable Conditions.

Documentation

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

Character reference dated November 27, 2000
Character reference dated November 15, 2000
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990209 - 990307	COG

Period of Service Under Review:

Date of Enlistment:  990308		Date of Discharge:  991210

Length of Service (years, months, days):

	Active:    00  09  03
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  93

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.9 (3)			Conduct:  2.9 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  MARCORSEPMAN Par. 6204.3.

Chronological Listing of Significant Service Events:

990716:	Mental Health evaluation for manic depression.  Assessment: Past history of extensive psych problems before enlistment, previously not reported.  Axis I: R/O bipolar disorder, Axis II: R/O personality disorder NOS (borderline schizotypal avoidant).

990722:	Applicant's voluntary statement found in service record.

991004:	Medical Board notification: Applicant has been evaluated and will appear before a medical board.  The diagnosis is recurrent subluxation of patella.  Limitations are: No PFT, prolonged running, non-deployable.  The anticipated disposition of the medical board is: discharge, Enlistment in Error, Existed Prior to Service (EPTS).

991020:	Applicant notified of intended recommendation for discharge with an under other than honorable conditions by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

991020:	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.

991020:	Commanding officer recommended discharge with an under other than honorable conditions 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 your false official statement.  You failed to initially disclose during the induction process your significant preservice history regarding you tibial/fibular fixture of left leg.

991208:	SJA review determined the case sufficient in law and fact.

991208:	GCMCA [Commanding General, Marine Corps Base, Camp Pendleton] directed the applicant's discharge with an under other than honorable conditions 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 991210 with an under other than honorable conditions 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 discharge was proper but inequitable (C and D).

Issue 1.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  This discharge has been determined to be proper.  The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel, Pers 814, 5720 Integrity Drive, Millington, TN 38055, and the Commandant, United States Marine Corps, Code MMPE-5, Washington, DC  20380-3001.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief on this issue is denied.
 
Issue 2.  Based on the applicant’s service and medical records, the Board found evidence that the type of discharge the applicant received was inequitable.  The Board found no indication of misconduct that may have warranted separation under other than honorable conditions.  Further, there was no record of counseling that was required when the applicant received his low performance and conduct marks (A).  Accordingly, the Board voted to grant relief in the form of an upgrade of characterization of service to General (under honorable conditions).

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.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