ex-, USMC
MD06-01161

Current Discharge and Applicant’s Request:

Application Received:  				20060905
Characterization of Service:			
Narrative Reason for Separation:		INVOLUNTARY DISCHARGE, FRAUDULENT ENTRY INTO MILITARY SERVICE
Discharge Authority:				MARCORSEPMAN 6204.3
Last Duty Assignment/Command at Discharge:	SPTBN, RTR, MCRD, PISC

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		HARDSHIP
	Review Requested:			
Representation:  					CIVILIAN COUNSEL

Applicant’s issues:
1.  Reenlistment opportunity.
2.  Change reenlistment code.
3.  Hardship and adjustment problems during time of enlistment.

Decision:

By a vote of  the Characterization shall  UNCHARACTERIZED
By a vote of  the Narrative Reason shall change to ERRONEOUS ENLISTMENT  

Date of Decision:					20070802
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES
Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

Issues 1-2:  The Board determined that these Issues are not issues which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to page one of the Addendum regarding this issue. 

Issue 3 (Equity).  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  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 NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.  A particular circumstance of interest was the Government’s claim that grade school counseling justified psychiatric care.  The enlistment clearly was not fraudulent as the NDRB found that school counseling for a learning disorder does not constitute psychiatric episodes and care.  The NDRB noted that there were improprieties in the Applicant’s discharge action, is convinced that this procedural error was prejudicial to the Applicant, and therefore an inequity in the narrative reason of the Applicant’s service did occur.   

The Applicant should be aware that, with respect to non-service-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. 

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19990831 - 20000620	

Period of Service Under Review:
Date of Enlistment:  				20000627
Years Contracted:  				
Date of Discharge:				20000816
Length of Service
	Active:					00  Yrs  01  Mths  20  Dys  (Does not exclude lost time)
Time Lost During This Period:			 
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						56
MOS:						9900
Highest Rank:					

Proficiency/Conduct marks (# of occasions):		N/A/N/A

Awards and Decorations (as listed on the DD Form 214):	NONE

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

20000808:	Medical Dispositions Officer, Branch Medical Clinic notified Recruit Liaison Section of applicant’s physical condition which existed prior to enlistment and is disqualifying for active duty service.  The undisclosed history is psychiatric counseling.

20000808:	Recruit Liaison Section letter.  Applicant will be processed for a fraudulent enlistment due to undisclosed history of psychiatric counseling.

20000811:	Assistant Chief of Staff, Recruiting proposed administrative action:  MHU evaluation recommends discharge for fraudulent entry due to pre-service psychiatric treatment.

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

20000808:	Applicant’s voluntary statement.

20000808:	Clinical Psychologist:  Applicant reported voluntarily.  He is extremely passive-aggressive and desperate to be discharged.  He also has many anxiety symptoms.  He is at risk only because he intends to repeatedly injure himself until discharged. 
	Assessment:
	AXIS I: Anxiety disorder NOS/learning disability.
	AXIS II: Passive aggressive personality.
	Plan:  Fraud (learning disability - special ED from 2nd grade through sixth and 7th through twelfth.

20000808:	Branch Medical Clinic, Marine Corps Recruit Depot, Parris Island, SC.
	Assessment: Anxiety disorder NOS/learning disability/passive aggressive personality.
	Recommendations: Fraudulent screening at Medical Disposition Office re: past psychiatric counseling at school, learning disability and special ED from second grade through high school.  I strongly recommend separation regardless of fraud status.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20000810
Basis for Discharge:	FRAUDULENT ENTRY

Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20000810
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			WAIVED
	Administrative Board			

Commanding Officer Recommendation (date):	 SEPARATION (20000811)
SJA review (date):				
Separation Authority (date):	COMMANDING GENERAL, MARINE CORPS RECRUIT DEPOT, PARRIS ISLAND (20000811)
Narrative Reason directed:				DEFECTIVE ENLISTMENT DUE TO FRAUDULENT ENTRY
Characterization directed:				 SEPARATION
Date Applicant Discharged:			20000816

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 Under Review:
	Service/Medical Record:				18
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					6
	Employment:					6
	Health/Medical:					1
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation (Describe Below)			13

        Total Number of Pages:				44

       Description of Other Documentation:
       	Orchard Park Central Schools referral for psychological evaluation (9 pages)
	Orchard Park Central Schools referral for psychological evaluation (2 pages)
	Armed Security Guard Training Certificate
	License to carry pistol (front and back) and Applicant’s Social Security card

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, MCO P1900.16E), effective 18 August 1995 until 31 August 2001, paragraph 6203, ERRONEOUS ENLISTMENT/REENLISTMENT.

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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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