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

FOR OFFICIAL USE ONLY

 ex-PFC, USMC
Docket No. MD05-01184

Applicant’s Request

The application for discharge review was received on 20050706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) and the Narrative Reason for Separation be changed to “None or General.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained the American Legion as the representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131.  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 and reason for discharge shall not change.  The discharge shall remain Uncharacterized by reason of defective enlistment and induction due to a fraudulent entry.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board:

“My discharge was unjust because Applicant disclosed his medical condition to his recruiter prior to enlistment.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION.”

“To Whom It May Concern;

This letter is to simply request a change of discharge.  Attached to this letter will be another letter from a friend and U. S. Marine, D_ L_ C_, who enlisted with me.  The following is a brief description of the circumstances that I was faced with upon my enlistment.

In July of 1995 Mr. C_ and I had made contact with a Sgt. S_ at the U.S.  Marine Corp.  recruiter’s office in Irving TX.  Upon agreeing to enlist in the Marine Corp. we were both asked a series of questions and in the questions we were asked if we had asthma.  D_ answered no and I answered yes, Sgt. then stopped the questions and said that I could not be a Marine if I had asthma.  I told him that I really wanted to be a Marine and after he went into the back room of the office with his superior SSgt.  They both came out and Sgt. asked me “ok, ill ask you again, do you have asthma?” as I replied “yes” he then stated “no!  Do you have asthma?”  I then caught on to the implied suggestion and answered “no”.  We then were enlisted and later were sent to MCRD San Diego CA. for boot camp.

After arriving at boot camp, during the preliminary tests we, as a group, were asked if anyone had any medical conditions that we (the corp.) needed to know about.  I then informed them about my asthma.  Upon doing so I was transferred to the PCP platoon and then was given several medical tests at Balboa Naval Hospital were I was diagnosed with asthma.  I was then discharged as Fraudulent Enlistment.

Sir or Mam, my intentions are to simply request that my discharge be changed to honorable or even general so that I can further my career as a Police Officer in the State of Texas.  I do not, in any way, want to get any other person(s) (recruiters) in trouble or cause any disruption or disciplinary actions to befall another person.  I am hereby stating that I do not want nor expect any monitory or any other benefits from the U.S.  Marine Corp.  I simply want a few letters on a piece of paper to be changed.

My enlistment was ten (10) years ago, and all I wanted to do was become a U. S. Marine and serve my country.  Unfortunately I was unable to do that.  I am now doing what I love as a Police Officer and the only way I can further myself in this field is to get this laps in judgment corrected.  But you are the only people that can help me.  I thank you for your time.  For any further information please feel free to contact me at any time at Hm#817-562-4141 or cell #817-846-6470.

Sincerely, thank you, C_ R_ C_ DOB 02-26-75
For response, Home address: (address deleted)”

Representative submitted no issues.

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from D_ C_, undtd
Character Reference ltr from R_ M_, Sergeant, dtd July 28, 2005
Character Reference ltr from D_ L_, dtd August 1, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19950425- 19950710	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950711		Date of Discharge:  19950731

Length of Service (years, months, days):

Active:    00  00  21
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		   None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  62

Highest Rank:  PFC				MOS:  9971

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  NONE

*Not Applicable

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

UNCHARACTERIZED/INVOL DIS-BOARD WAIVED - (FRAUDULENT ENTRY INTO MILITARY SERVICE), authority:  MARCORSEPMAN Par. 6204.3.

Chronological Listing of Significant Service Events:

950425:	Applicant granted waiver for drug use.

950425:	Applicant’s Report of Medical History.  Applicant checked “no” for asthma.

950713:	Branch Medical Clinic MCRD referred Applicant to Pulmonary Clinic.  Reason for request:  20 year old stating has difficulty breathing and shortness of breath, wheezing.

950720:	Medical evaluation by Pulmonary Clinic, BMC-MCRD:
	Provisional Diagnosis: R/O Asthma.
	P: EPTE-Admin sep.

950724:	Counseling re: Discharge.  SNR (Applicant) has asthma and cannot continue to train.  SNR states that he has not been abused by anyone in the Battalion.

950726:	Branch Medical Clinic Marine Corps Recruit Depot San Diego, CA
	Pulmonary consult, h/o chronic inhaler use, positive methacholine challenge.
	Diagnosis: Asthmas EPTE.
	Referred for administrative/entry level separation.  Member does not meet the minimum standards for enlistment and he did not meet those standards as set forth in MANMED Section III, AR 40 501 and MILSPERMAN 3620280 at the time of entry into training.  Member has incurred no injuries and has had no defect aggravated by active military service.  Member’s present condition is “Not Physically Qualified” in accordance with the physical standards for enlistment as opposed to physical unfitness by reason of physical disability as defined in Appendix A of SECNAVINST  1850.4C (Disability Evaluation Manual).  Member’s condition is unlikely to change in the future.

950726:	Applicant interviewed by Battalion QCB/RLS representative.  SNR (Applicant) states that he has never been diagnosed with asthma.  Medical verified problem thru pulmonary consult, H/O chronic inhaler use and methacholine challenge.  SNR states that he was on a inhaler (Proventil) but didn’t tell the Recruiter or MEPS.  Medical diagnosis asthma EPTE, recommends ELS.

950727:	Applicant notified of intended recommendation for discharge with an Entry Level Separation by reason of defective enlistment - fraudulent enlistment.  The factual basis for this recommendation is the Applicant’s failure upon enlistment to divulge a pre-service medical condition (Asthma) which could have effected eligibility at time of enlistment.  

950727:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

950728:	Commanding Officer, 1st RTBN, RTR, MCRD, San Diego, CA recommended Applicant’s discharge by reason of defective enlistment and induction, fraudulent enlistment, medical asthma.  

950728:	GCMCA, Commanding General, Marine Corps Recruit Depot, San Diego, CA, directed the Applicant's discharge by reason of defective enlistment and induction, fraud medical asthma with an Entry Level characterization.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950731 by reason of defective enlistment and induction due to a fraudulent entry (A) with a service characterization of uncharacterized.  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 (B and C).  

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service.  The Applicant's service record did not contain any unusual circumstances during his 21 days in the military to warrant a change of discharge to honorable.

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.

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 additional evidence related to this 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 P1900.16D), effective 890627 until 950817, 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 V, Para 502, Propriety.

C.  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