ex-LCpl, USMC
MD06-00995

Current Discharge and Applicant’s Request:

Application Received:  				20060718
Narrative Reason for Separation:			FRAUDULENT ENTRY INTO MILITARY SERVICE
Character of Service:				
Discharge Authority:				milpersman 6204.3
Last Duty Assignment/Command at Discharge:	SACO SOI TRNGCMD CAMP LEJEUNE NC

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					 DESIGNATED

Decision:

Date of Decision:					20070607
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
 (BCD only) The Board found that clemency was: 	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20040426 - 20050104	COG
Active:   USA		               		19950712 - 19990711	HON
	USA					20000324 - 20030323	HON

Period of Service Under Review:
Date of Enlistment:  				20050105
Years Contracted:  				;        
Date of Discharge:				20050928
Length of Service:				00  Yrs  08  Mos  24  Days (does not exclude lost time, if any)
Time Lost During This Period:			      
   
Education Level:  				
Age at this Enlistment:  				
AFQT:  						82
MOS:						9900
Highest Rate/Rank:				LCpl

Proficiency / Conduct marks (# of occasions):	3.9 (2) / 3.9 (2)

Awards and Decorations (as listed on the DD Form 214):  ARMY COMENDATION MEDAL, ARMY ACHIEVEMENT MEDAL, ARMY GOOD CONDUCT MEDAL (2ND AWARD), NATIONAL DEFENSE SERVICE MEDAL (2ND AWARD), NONCOMMISSIONED OFFICER'S PROFESSIONAL DEVELOPMENT RIBBON, ARMY SERVICE RIBBON, OVERSEAS SERVICE RIBBON, MARKSMAN RIFLE BADGE, ARMY LAPEL BUTTON

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20050824:	Commanding Officer, Naval Hospital, Camp Lejeune, NC letter to Commanding Officer, School of Infantry.  (Applicant’s) evaluation and treatment plan have been reviewed by ENS O_ of the Camp Geiger Branch Medical Clinic.  Applicant is a 28-year-old male with Old Disruption of Anterior Cruciate Ligament.  Applicant has been evaluated and followed by ENS O_…, CDR S_ of the Sports Medicine Clinic and Dr. F_ of the Naval Hospital Camp Lejeune Orthopedic Clinic.  Applicant is recommended for administrative separation for Old Disruption of Anterior Cruciate Ligament, Existing Prior to Entry (EPTE) fraudulent enlistment.  This is a physical condition, not a disability.

20050829:	Applicant submitted handwritten statement to Commanding Officer, Student Administration Company, acknowledging having had 2 surgeries on knee while in the Army.

20050902:	NJP for violation(s) of UCMJ:
	Article 83:  On or about 20040426, by deliberate concealment that he was diagnosed with Old Disruption of Anterior Cruciate Ligament (Existing Prior to Entry), procure himself to be enlisted as a U.S. Marine, and did thereafter receive pay and allowances under the enlistment procured.
	Award:  Forfeiture of $339.00 for 1 month and restriction for 14 days (suspended 6 months).
	Not appealed.  

20050906:	Counseling:  Advised of deficiencies (violation of Article 83 deliberate concealment diagnosed with Old Disruption of Anterior Cruciate Ligament prior to entry through Syracuse Meps, Syracuse, NY) Necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20050913:	Counseling:  Advised of deficiencies (fraudulent enlistment in the USMC by failing to report your condition (Old Disruption of Anterior Cruciate Ligament, (epte) (Fraudulent Enlistment) (PCNAD) prior to your enlistment.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040406:	Applicant checked “no” block in response to Report of Medical History questions 12i, “Have you ever had or do you now have knee trouble?” 12j, “Have you ever had or do you now have any foot or knee surgery….?” and 22, “Have you ever had, or have you been advised to have any operation or surgery?”

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				NOTIFICATION PROCEDURE
Date Notified:					20050912
Basis:						
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			YES

Date Applicant Responded to Notification:		20050923
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			

Board Date:					NOT APPLICABLE
Recommendation of Commanding Officer (date):	  (20050912)
SJA review (date):				       
Discharge directed by (date):			COMMANDING OFFICER, SCHOOL OF INFANTRY (20050927)
Narrative reason directed:				FRAUDULENT ENTRY INTO MILITARY SERVICE
Characterization of directed:			 (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20050928 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type						#Pages
	Related to Period of Service:
		Service/Medical Record:				4
	Related to Other Period(s) of Service:		     	2
	Related to Post-Service Period:
		Community Service:				0
		Education:					0
		Employment:					0
		Health/Medical:					0
		Character Statements:				0
		Criminal Records Checks:				0
		Additional Statements from Applicant:		0
       	 Other Documentation	 (Describe Below)		0

        	Total Number of Pages:					6

       	Description of Other Documentation:  None
            

Applicant’s Issues as Summarized by the Board:
1.  Recruiter instructed Applicant to not reveal medical condition.
2.  Commanding Officer recommended honorable characterization of service.
3.  Characterization of service unfair in light of 2 previous honorable discharges.

Decisional Issues:

Issue 1 ().   There is no evidence in the record, including his own statement of 20050829 made in the timeframe of his separation, to support the Applicant’s contention that his recruiter encouraged him to provide false information, nor does he offer any in his petition to the Board.  The Applicant’s allegation, by itself, is not sufficient to overcome the presumption of regularity in government affairs which the Board applies in reviewing discharges.  Relief denied on this issue.  

Issue 2 ().  The Commanding Officer’s recommendation is not binding on the Separation Authority.  In the Applicant’s case, the Separation Authority determined that the Applicant’s 8 months of service, marred as it was by counseling and nonjudicial punishment for violation of the UCMJ, Article 83, was properly characterized as general (under honorable conditions).  The NDRB advises the Applicant that violation of Article 83 is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  Relief denied on this issue.  

Issue 3 ().  Each period of a servicemember’s service is characterized in accordance with that servicemember’s performance and conduct during that period of service.  Characterization of service as honorable during one or more periods of service does not mitigate performance and/or conduct within a subsequent period of service which can be properly characterized less favorably than honorable.  The Applicant’s 8 months of service were marred by nonjudicial punishment for violation of Article 83 of the UCMJ, a serious offense for which a punitive discharge is authorized at special and general court-martial.  Relief denied on this issue.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board did discover an error in the processing of the Applicant’s case.  The Applicant was notified, and acknowledged, that the least favorable characterization of service he could receive was honorable.  This was incorrect, as the least favorable characterization the Applicant could have received is the one that he did receive, general (under honorable conditions).  When a procedural error is discovered, the Board determines whether such error is prejudicial, i.e. if there is substantial doubt that the discharge would have remained the same if the error had not been made.  The Board noted that the Applicant did not allege that he had been misled into any of his rights (including his right to an administrative discharge board to which he was entitled as a result of having more than 6 years of service) and determined by a vote of 3-2 that, in light of the Applicant’s basis for separation and nonjudicial punishment, there was not substantial doubt that the discharge would have remained the same if the error had not been made.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None.

Pertinent Regulation/Law

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, Para 211, Regularity of Government Affairs,  Part V, Para 502, Propriety  and  Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 83, Fraudulent enlistment.