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

 ex-PFC, USMC
Docket No. MD04-00748

Applicant’s Request

The application for discharge review was received on 20040408.  The Applicant requests the reason for the discharge be changed to “convenience of the government.”  The Applicant requests a documentary record discharge review.  The Applicant listed American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041015.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I was discharged for fraudulent misrepresentation of a medical condition.  As will be shown by the attached documentation, I did not have Hepatitus C as was claimed.  All my tests came back negative and that is what I relied upon.  If it is determined that I was not at fault, I further request that actions be taken to correct my RE code so that I may reenter the Marine Corps.”

Additional issues submitted by Applicant’s representative the American Legion: 

In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) and following statement in supplement to this Applicant’s petition. 

Review of the service record reveals that this former member failed to disclose his history of Hepatitis C on DD Form 2807-2 at the time of his enlistment.  The service medical records reflect positive test results for Hepatitis C on 021008. Following due process notifications, he was discharged with an Uncharacterized - Entry Level Separation due to fraudulent entry as authorized by MARCORSEPMAN, Par. 6204.3

Essentially, as noted on DD Form 293, this Applicant is requesting that his reason for discharge be changed because he did not have Hepatitis C in service as evidenced by the 3 private medical test results that he has submitted indicating that he negative for Hepatitis C.  

Following careful review of the evidentiary record, we opine that the issues raised on DD Form 293 amply advance this former member’s contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, we rest this case on the evidence of record.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).
 
This case is now respectfully submitted for deliberation and disposition.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Hepatitis Test Results (3 pages)
Copy of DD Form 214
VA Claim to NDRB (2 pages)
VA Claim Applications (3)
NDRB/BCNR purpose and scope information 

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USMC		None
	Inactive: USMCR(J)		020719 - 020924	COG

Period of Service Under Review:

Date of Enlistment:  020925		Date of Discharge:  021023

Length of Service (years, months, days):

	Active:    00  00  29
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  81

Highest Rank:  Pvt			MOS: 9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NOB*			Conduct:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Not observed

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  MARCORSEPMAN Par. 6204.3.

Chronological Listing of Significant Service Events:

020926:	Applicant Voluntary Medical Statement at MCRD PISC.  Applicant states 
he “received a letter from the Red Cross that there is a possibility that I might have Hepatitis C.”

021008:	Naval Hospital Beaufort SC lab report confirms that the Applicant is positive for Hepatitis C.

021009:	Medical Disposition Officer evaluation indicates Applicant has a physical condition which existed prior to enlistment and is disqualifying for active duty service.  The undisclosed history is Hepatitis C.

021011:	Applicant notified of intended recommendation for discharge with a uncharacterized discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

021011:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit written statement in rebuttal.

021018:	Commanding officer recommended discharge with a uncharacterized discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.  The factual basis for this recommendation was fraudulent for pre-service undisclosed Hepatitis C.

021018:	GCMCA, Commanding Officer, Recruit Training Regiment, Marine Corps Recruit Depot, Parris Island, SC directed the Applicant's discharge uncharacterized by reason defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021023 with an uncharacterized discharge by reason defective enlistment and induction due to a fraudulent entry (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1.   The Applicant contends that his discharge for “fraudulent misrepresentation of a medical condition” was not proper because he did not have Hepatitis C.  The Applicant’s contentions are without merit and fail to support this issue.  The Applicant’s discharge was a result of his failure to fully disclose to the Marine Corps the possibility that he may be positive for Hepatitis C, prior to his enlistment.  During February 2002 the Applicant received a letter from the Red Cross indicating that there was a possibility that he may have contracted Hepatitis C.  In March of 2002 the Applicant tested negative for Hepatitis C at a civilian medical lab.   On his second day at MCRD Parris Island, September 26, 2002, the Applicant made a voluntary statement wherein he stated  that  “it is most likely that I contracted [Hepatitis C] after my MEPS and return from PLC training.”  Following the Applicant’s voluntary statement, a Naval Hospital Beaufort SC lab report confirmed the Applicant as positive for Hepatitis C.  The proper standard is whether the Applicant deliberately misrepresented his medical condition during the enlistment process, 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.  Nothing in the record suggests that the Applicant ever disclosed the possibility that he was positive for Hepatitis C to his recruiters and his statements to the contrary are not the substantial and credible evidence needed to refute the government’s presumption of regularity in the conduct of its affairs.  In addition, the documentation available for review did not refute the presumption that the Hepatitis C infection still existed during the time of his enlistment.  Given the Applicant’s failure to disclose his medical history, no other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

Issue 2.  The Applicant requested that “action be taken to correct my RE code so that I may reenter the Marine Corps”.   Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023