ex-, USMC
MD06-01162

Current Discharge and Applicant’s Request:

Application Received:  				20060905
Characterization of Service:			
Narrative Reason for Separation:			 into military service
Discharge Authority:				6204.3
Last Duty Assignment/Command at Discharge:	3rdrtbn mcrd sAN diego ca

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		UPGRADED TO A LEVEL ABOVE FRAUDULENT ENTRY
	Review Requested:			
Representation:  					

Applicant’s issues:
1.  Future employment opportunities.
2.  Misdiagnosed in service.
3.  Inequitable Narrative Reason.  

Decision:

By a vote of  the Characterization shall  UNCHARACTERIZED
By a vote of  the Narrative Reason shall remain FRAUDULENT ENLISTMENT INTO MILITARY SERVICE  
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

Issue 1:  The Board determined that this Issue is not an issue 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 2 (Equity).  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s conduct.  In fact, the NDRB sees no connection between the Applicant’s medical condition and his fraudulent entry.   

Issue 3 (Equity):  The Applicant implies that his narrative reason was the result misguidance by his recruiter.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s omission of fact which would have reasonably affected the Applicant’s eligibility for enlistment.   

The Applicant should be aware that, 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 service member’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 less than 6 months in the military prior to notification of separation to warrant a change of discharge to general (under honorable conditions).  Therefore the Board found his uncharacterized characterization appropriate.   

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. 

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.  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.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				20030613 - 20031207	

Period of Service Under Review:
Date of Enlistment:  				20031208
Years Contracted:  				 
Date of Discharge:				20040203
Length of Service
	Active:					00  Yrs  01  Mths  26  Dys  (Does not exclude lost time)
Time Lost During This Period:			  
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						63
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

20040128:	Applicant’s statement.   “I told my recruiter about my pre-existing back pain.  I was told at the time not to worry about it.  I did not tell anyone at MEPS and then I went to boot camp.”
  
20040129:	Counseled this date on not being recommended for reenlistment and being assigned the reenlistment code of RE-3F by reason of Defective Enlistment-Fraudulent Enlistment.  

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

20030613:	MEPS Report of Medical History signed by the Applicant declaring no recurrent back pain or any back problem.  

20031203:	Recruit Screening Medical Exam.  History; Applicant fell off of a 30 foot cliff in 1990, did not have x-rays.  Applicant did not receive waiver.  One month prior to induction, Applicant injured back picking up boulders.  And saw a chiropractor and was told he had a previous condition.   

20031214:	Radiologist report noting back pain with history of prior injury.  

20031215:	MCRD Sports Medicine Clinic:  Applicant sent to Emergency Room last night for back pain. 

20031217:	MCRD Sports Medicine Clinic:  Follow up.  Pain is increasing in back. 

20031224:	MCRD Sports Medicine Clinic:  Follow up for back pain.   

20040109:	MCRD Sports Medicine Clinic:  Follow up.  No improvement. 

20040123:	MCRD Sports Medicine Clinic:  Follow up.  No improvement despite rehab for 30 days. 

20040123:	Branch Medical Clinic, San Diego, CA.  Recommendation for entry level separation from the United States Naval Medical Department for the following conditions.  Chief complaint:  Chronic constant lower back pain.  Verification process:  Review of radiographs, health record entries and rehabilitation notes.  This recruit sustained a compression fracture of his lumbar vertebral body prior to enlistment.  On training day 3 he began to experience debilitating discomfort with minimal activity.  He will not be able to perform the duties of a Marine Rifleman.  Diagnosis:  Post fracture lumbar pain.  Applicant referred for administrative entry level separation.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20040129
Basis for Discharge:				DEFECTIVE ENLISTMENT/FRAUDULENT ENLISTMENT
Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		20040129
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			()
	Administrative Board			

Commanding Officer Recommendation (date):	 SEPARATION (20040128)
SJA review (date):				NOT FOUND IN RECORD
Separation Authority (date):	COMMANDING GENERAL, MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CA (20040130)
Narrative Reason directed:				DEFECTIVE ENLISTMENT AND INDUCTION FRAUD
Characterization directed:				
Date Applicant Discharged:			20040203

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:				3
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					4
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation (Describe Below)			0

        Total Number of Pages:				8

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.

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