ex-, USMC
MD07-00234

Current Discharge and Applicant’s Request

Application Received:  20061218					Characterization Received:  
Narrative Reason:  FRAUDULENT ENTRY INTO MILITARY SERVICE 	Authority:  MARCORSEPMAN 6204.3

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Military medicine misdiagnosed injury that occurred during recruit training

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  FRAUDULENT ENTRY INTO MILITARY SERVICE.

Date:  20070920	  			         		       Location:  Washington D.C.  

Discussion

Issue 1 ().  During recruit training, the Applicant complained of left knee pain which prevented him from training.  While undergoing treatment, he acknowledged having suffered a pre-service injury to his left knee while snowboarding, which he had not disclosed prior to recruit training.  Eventually, the Applicant was diagnosed with a meniscal tear, existing prior to entry, and discharged.  He alleges to this Board that his injury occurred during recruit training while jumping from an obstacle, and that he did not have a meniscal tear.  The Board noted that there is no evidence in the record indicating that, while in recruit training, the Applicant attributed his knee pain to such an event.  The Board noted that, regardless of which is the more accurate diagnosis of the injury, the Applicant’s own lack of candor contributed to an enlistment which, had the true nature of his injury been know, would presumably not have occurred.  By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized 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 considered most appropriate.  The Applicant's service record did not contain any unusual circumstances during his less than 2 months in the military to warrant a change of discharge to honorable.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20051123 - 20051204  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20051205	Years Contracted:  ; Extension:    		Date of Discharge:  20060111
Length of Service:  00  Yrs  01  Mths  07  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  35	MOS:  9900  Highest Rank:  
Proficiency/Conduct marks (# of occasions):	N/A/N/A	Awards and Decorations (per DD 214):  NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge
  
20051207:	Recruit Screening Exam.
	History of left knee sprain – 1 year ago non-limiting.  No swelling or TTP.  Full ROM, no ligament (illegible).
	Recommend SNM begin basic training.

20051229:	BMC MCRD, San Diego, CA:  Reason for visit:  Left Knee Pain.
	Diagnosis:  Left Knee Meniscal Tear - EPTE
	Recommendation:  Administrative Entry Level Separation.

20060104:	Battalion Drop Counseling: Applicant arrived at MCRD on 20051205.  On 20051209, Applicant failed 1st (3/36/13:40), but was waived and dropped to 3061/L.  On 20051222, (T-9), Applicant dropped to MRP due to left knee.  On 20051229, BMC MCRD recommended ELS due to Left Knee Meniscal Tear/EPTE.  Applicant’s condition verified by history, physical exam, and x-ray.  Applicant’s condition is unlikely to change if retained.  On 20051229, medically cleared for ELS.  Applicant disclosed previous left knee injury sustained while snowboarding at the MOT.

Discharge Process

Date Notified:	200060106
Basis for Discharge:	 DUE TO 
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	CONVENIENCE OF THE GOVERNMENT

Date Applicant Responded to Notification:		20060106
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20060104)
SJA review (date):	
Separation Authority (date):	CG, MARINE CORPS RECRUIT DEPOT (20060109)
              Basis for discharge directed:	 DUE TO
              Characterization directed:	
Date Applicant Discharged:	20060111

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Statement from Veteran Service Officer

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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