ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20090901
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to:  MEDICAL
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20070918 - 20071125  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20071126	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080124	Highest Rank:  
Length of Service:    Year(s)    Month(s)  29  Day(s)
Education Level:  	AFQT:  56
MOS:  8000
Proficiency/Conduct Marks (# of occasions):   / 	Fitness Reports:  

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “MARCORSEPMAN 6204.3”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service: 
		DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Substance Abuse:		Criminal Records:	
	Family/Personal Status: 		Community Service:		References:	
	Additional Statements:
		From Applicant:		From Representation:		From Congress member:	

	Other Documentation:	

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 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.

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

Applicant’s Issues

1.	Decisional issues:  Applicant seeks change in narrative reason for discharge and characterization of separation due to both propriety (wrong narrative reason for his circumstances) and (equity) in that he rates an Honorable characterization due to serving without misconduct.   

Decision

Date:  20100917		Location: Washington D.C.	 Representation: 

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified two decisional issues to the Board.  In addition, the Board completed a thorough review of the circumstances that led to the discharge and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.  The Applicant’s record of service included 1 month and 29 days of active duty service with no misconduct or retention warnings.

The Applicant provided documentation that included an application for correction of his record to the Board for Correction of Naval Records (BCNR), the BCNR response to the Applicant, and pre-service medical documentation.

:  (Decisional) ()  .  The Applicant contends that the Marine Corps knew about his injury prior to reporting for basic training and that the prior injury was annotated on his recruit screening exam.  As such, the Applicant seeks a change in narrative reason for discharge to Erroneous Enlistment and a change to his characterization of separation as Honorable due to having served without any misconduct or discredit. 
  
The Applicant was discharged by reason of fraudulent entry into military service.  In accordance with the Marine Corps Separation and Retirement Manual, a member may be separated for effecting a fraudulent enlistment by falsely representing or deliberately concealing any disqualifications.  An enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts, which, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the Marine's eligibility for enlistment or induction.  Conversely, a member may be separated on the basis of erroneous enlistment when the enlistment would not have occurred if relevant facts had been known or had appropriate directives been followed and the enlistment was not the result of fraudulent conduct on the part of the member.  

The Applicant contended at the time of his separation, and contends now, that the Marine Corps knew of the injury.  In reviewing the Applicant’s medical and service records, along with the documentation provided by the Applicant, it was determined that the Applicant’s basis for challenge is without merit.  The Applicant was enlisted and shipped to recruit training on 26 November 2007.  Prior to his induction and shipping, the Applicant completed a Medical Prescreen of Medical History Report (DD Form 2807-2) dated 7 June, 2006.  The Applicant was seen by a medical officer and evaluated for enlistment on 10 June 2007; the medical officer’s report, and the Applicant’s provided medical background information, is documented in the Applicant’s record on DD Form 2807-1.  

On 26 Nov 2007, while at the Military Entrance Processing Station (MEPS), the Applicant completed, initialed each entry, and signed an Introductory Pre-accession Interview Form (USMEPCOM form 601-23-5-R-E) in which he:

a.  was advised to ensure all the information in his paperwork was correct before enlisting and to ensure he omitted nothing that might cause him to be considered for a fraudulent enlistment.  [Section 6]
b.  was advised that any new or changed information must come out now—not after he enlisted and that if the service discovers disqualifying information after your enlistment, a court-martial for fraudulent enlistment may result.  [Section 8]

Along with the MEPS interviewer, the Applicant answered no, by annotating his initials in the response block, to the following specific questions on the Pre-accession Interview form:

a.  Did you have any physical problems during your DEP period about which you did not tell the doctors?  [Section 10, question 10]
b.  Is there anything else the doctor does not know about, but should know, that could prevent your from completing basic training such as: major surgery, allergies, reaction to bee stings, heart murmurs, asthma, migraine headaches, KNEE PROBLEMS, back problems, psychiatric care and counseling, or attempts to commit suicide?  [Section 10, question 11]
c.  With reference to the core values you read; this is your last change before having to comply with the Uniform Code of Military Justice (UCMJ).  Is there anything else you would like to talk about before you enlist?  [Section 10, question 14]
Finally, the Applicant certified his understanding of the following statement “I am aware that immediately after receiving the oath of enlistment, Article 83 of the UCMJ applies (Article 83, as explained in writing - Fraudulent Enlistment)” and signed the document.  [Block 11]

On 26 November 2007 the Applicant was enlisted into the Marine Corps and shipped to recruit training.  On 27 November 2007, while conducting his initial entry processing at recruit training, the Applicant divulged to the medical staff that he had recently (6 weeks prior) suffered a dislocated knee injury.  The recruit training command allowed the Applicant to continue training since he was not having any medical-related issues at that time even though he could have been processed for separation due to an undisclosed medically disqualifying issue.  On 14 December, the Applicant was dropped from training due to a knee dislocation and began the separation process.  At this time, the Applicant disclosed two other prior knee dislocations, which were also not reported.  On 10 January 2008, a local Medical Board determined that the Applicant was not physically qualified for enlistment in accordance with the enlistment procurement fitness standards and warranted separation.  

The command did not pursue either punitive or administrative charges for violation of Article 83 of the UCMJ, but instead opted for the more lenient entry level administrative separation for Fraudulent Enlistment or Induction.  Furthermore, by regulation, an Uncharacterized description shall be used when separation is initiated while a service member is in an entry-level status (within the first 180 days of active-duty service), except when separation is for certain prescribed situations (none of which apply to the Applicant).  If circumstances warrant characterization as Under Other Than Honorable conditions, or when characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty, it may be approved on a case-by-case basis by the Secretary of the Navy.  

The Applicant's service record did not indicate any unusual circumstances of personal conduct or performance of duty during his less than 2 months of military service that would clearly warrant an Honorable characterization of service.  With respect to non-service related administrative matters, i.e. Department of Veterans Affairs benefits, civilian employment, etc., an Uncharacterized separation shall be considered the equivalent of an Honorable or General (Under Honorable Conditions) characterization.  Given the facts and omissions involved, and the disqualifying nature of the injury, the Board determined the narrative reason for separation was both proper and equitable and the awarded characterization of service shall remain Uncharacterized.

Summary:  After a thorough review of the available evidence, to include the Applicant’s documentation, his summary of service,  record entries, and his discharge process, the Board found that the discharge was both proper and equitable.  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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