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

  ex-Pvt, USMC
Docket No. MD03-01260

Applicant’s Request

The application for discharge review was received on 20030717.  The Applicant requests the reason for the discharge be changed from Fraudulent Entry.  The Applicant requests a documentary record review.  The Applicant listed Veteran of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  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:  UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

“1.  Dear Sir,
I want to remove the Fraudulent Entry statement on my discharge documents, or at least, state prominently on the DD214 that the reason for the discharge was not criminal activity.  The word “Fraudulent” indicates criminal intent and will harm me in obtaining a job or other future goals with the government or other professional agencies.

[DD 214 information deleted]

The facts of the case are detailed below:

Delayed Entry Program and Departure to Active Service

- Entered the Marine delayed entry program in July 2001

- Disclosed every medical or other condition known to me at the time of delayed entry and at time of departure in August 2002.

“Moment of Truth”

- I arrived at Paris Island.  At this point they had a “moment of truth”.  The Sargent Major of the Marines stated that an amnesty was in force and anything disclosed at this time would not be held against me.

- I remembered for the first time that a doctor had written that I had possibly “a very minor case of Asthma” (May 27, 1997).  He prescribed an inhaler, which was never used.  I never suffered an Asthma attack.  I participated in physical activities East Detroit High with no Asthma attacks.  I ran with a Marine Recruiter Assistant prior to going to Paris Island with no Asthma attack.

- I signed a voluntary disclosure form.  The Marines took away my $50,000 Montgomery GI Bill and removed my aircraft job placement.

- The Marines did a quick medical breathing test using a stethoscope holding against my chest and back.  They did not request my medical records.  Even with the disclosure they allowed me to enter basic training.

Basic Training

- In basic training I injured my knee.  I was sent to the Medical Recovery Platoon.  The Marines reviewed my knee over several weeks.  The Marines decided that it could not be repaired because of cartilage thinning inlateraptellar Facet minimum chondromalarc.

- During this time I also develop breathing problems because of the excess uss of cleaning chemicals used in the barracks.  The Marines ran a pulimary function test (PFT).  This proved that I did not have Asthma.  The medical doctor told me that if the PFT did not show asthma, I could continue with Marine Recruit Training.

- A week later, I was told that I would receive a fraudulent discharge because of the undisclosed asthma.

In conclusion, I want my discharge to be upgraded to Medical because the Marines proved that I did not have Asthma in the service.  At the very least I would want the DD214 to remove the Fraudulent Entry statement or state prominently on the DD214 that the reason was for Asthma, not criminal activity.  My understating is that I could reenter the service after six months if I was proven cured of my knee problems.

See attachments below for support and clarification of the above.

Thank you fo your help in this matter.

Sincerely,

J_ S_”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS)

“2.  We concur with the applicant’s contention that Fraudulent be removed from he DD 214.”

Documentation

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

Copy of DD Form 214
Copy of Recommendation for Discharge dtd 10 Oct 02
Voluntary Medical Statement dtd 14 Aug 02
Administrative Separation package (15 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		010706 - 020811	COG

Period of Service Under Review:

Date of Enlistment:  020812		Date of Discharge:  021017

Length of Service (years, months, days):

	Active:    00  02  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  66

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No marks found in service record
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:

021007:	Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

021007:  	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.

021010:	Commanding Officer recommended discharge 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 admission of pre-service asthma. 

021010:	Commanding Officer, Recruit Training Regiment directed the Applicant's discharge 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 20021017 with an uncharacterized discharge by reason of 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 and equitable (C and D).

Issue 1.   The Applicant claims that, at the “moment of truth,” he admitted a previously undisclosed medical history of asthma.  The records available to the Board indicate that this condition was disclovered during a medical exam for a knee problem.  On 021003, a Medical Dispositions Officer identified the physical condition, which existed prior to enlistment, as disqualifying.  The separation authority determined that a Narrative Reason of Fraudulent Enlistment most clearly described the reason for discharge.  In the absence of evidence other than the Applicant’s own statement, the NDRB presumed regularity and found the Separation Authority’s determination to be equitable and proper.  To change the Narrative Reason would be inappropriate. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

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 “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