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

ex-Pvt, USMC
Docket No. MD05-00306

Applicant’s Request

The application for discharge review was received on 20041210.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050210.  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 on the application:

1.  “I have never been diagnosed with asthma, ever.  The Marine Corps didn’t even give me a pulmonary breathing test to confirm I would have had trouble in the future or completing boot camp.  I have no reason to lie, and just wanted to take advantage of the excellent benefits that accompany serving our great nation.  I would like this discharge status changed so I can make good on wanting to serve our nation.  I have been told so many different things about my discharge code.  Some recruiters tell me that there’s nothing I can do (probably because they didn’t want to deal with my red tape), and some recruiters say I have to pay for a breathing test to be conducted by a civilian doctor.  To make everyone’s life less complicated I ask the discharge code/status to be reviewed.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		040220 - 040321	COG

Period of Service Under Review:

Date of Enlistment:  040322		Date of Discharge:  040506

Length of Service (years, months, days):

	Active:    00  01  15
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  74

Highest Rank:  Pvt			MOS:  9900

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

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:

040413:	Recruit Information Card entry:
	SNR is being dropped to MRP for possible Asthma.  SNR complained of complications.  SNR later disclosed a prior history of treatment 3-5 years ago.

040428:	Medical evaluation by Branch Medical Clinic, Lt B_, PA-C:
	Physical conditions which existed prior to enlistment, which if known would have been disqualifying at MEPS.  The undisclosed history is asthma.  

040428:	Recruit Liaison Section letter to 3rd Battalion Commanding Officer indicates recruit had a preservice history undisclosed of asthma with no allegations toward any recruiting members.

040428:	Applicant’s voluntary medical statement:
	This Recruit was not aware of this medical condition before entering MEPS and therefore did not disclose the information he has been enlightened with.  This recruit has been aware of inhaler usage in past but not any form of asthma.
	
040429:	Applicant notified of intended recommendation for by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

040429:	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.

040506:	GCMCA [CO RTR MCRD] directed the Applicant's discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was awarded an uncharacterized discharge on 20040506 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 and equitable (C and D).

Issue 1.  The Applicant states, “The Marine Corps didn’t even give me a pulmonary breathing test to confirm I would have had trouble in the future or completing boot camp.”  The Applicant was diagnosed with asthma by competent medical authority on 20040428.  This condition was determined to have existed prior to entry and, if known, would have been disqualifying at MEPS.  Relief is not warranted.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization.  Applicant's service record did not contain any unusual circumstances during his less than two months in the military to warrant a change of discharge to "honorable." The Board found that the statement provided by the Applicant does not refute the presumption that the Applicant deliberately misrepresented his medical condition during the enlistment process, including the omission or concealment of facts which, if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect the Marine’s eligibility for enlistment or induction.  No other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  Relief denied.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 
01 September 2001 until Present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

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