ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091008
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: DEFECTIVE ENLISTMENT or FRAUDULENT ENTRY INTO   
                                                                                  MILITARY SERVICE

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20070104 - 20071209  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20071210	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090204	Highest Rank:  
Length of Service:    Year(s)    Month(s)  25  Day(s)
Education Level:  	AFQT:  95
MOS:  0311
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle ,  

Periods of UA/CONF:  

NJP:  

- 20081020:	Article 83, 1 specification.
	Specification 1: In that Applicant wrongfully and knowingly misrepresent and /or deliberately concealed certain significant pre-service material medical facts regarding his enlistment qualifications, to wit: his depression, Oppositional Defiant Disorder (ODD), Attention Deficit Hyperactivity Disorder (ADHD), Dysthymic Disorder (DD), medication use, and asthma condition to procure an enlistment and did thereby receive pay and allowances for said enlistment procurement.   
	Awarded:  .  Suspended:   

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “0311 Rifleman”
  “School of Infantry, 3 Months, May 08”

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual (MCO P1900.16F), effective 01 September 2001 until Present: (1) Paragraph 6210, MISCONDUCT; and (2), 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 83.  

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

Applicant’s Issues

The Applicant seeks appropriate relief by a change to his characterization of service to Honorable and a narrative reason for separation change to “Defective Enlistment” or ‘Fraudulent Entry into Military Service.”  The Applicant alleges that the appropriate applicable regulations were either disregarded or purposefully ignored, that the Applicant’s administrative separation board for misconduct was erroneous, and that the Applicant’s overall service was honorable.  As such, a change in narrative reason for separation and corresponding separation code, along with a change in characterization of service, is warranted.
 
1.	Non-decisional issues:  None

2.  	Decisional Issue (Propriety):  The Applicant seeks a change to his narrative reason for separation due to impropriety in that had appropriate regulations been followed, the Applicant would have been properly discharged pursuant to either Paragraph 6204.2, Erroneous Enlistment, or Paragraph 6204.3, Defective Enlistment and Induction, of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) (MCO P1900.16F), vice separation by Paragraph 6210, Misconduct, Commission of a Serious Offense. 

3.  	Decisional Issue (Propriety):  The Applicant contends that if he had been properly processed for administrative separation due to fraudulent enlistment or erroneous enlistment due to the omission or concealment of pre-service medical and mental health diagnosis and treatment, the least favorable characterization of service authorized would have been General (Under Honorable Conditions) instead of the Under Other Than Honorable Conditions characterization of service that he was given.  

4.  	Decisional Issue (Equity): The Applicant states that he served honorably, was forthright with his pre-service mental health treatments and pre-existing medical treatments when it became an issue, and that the common service process for addressing the discovery or presentation of disqualifying information for military service is processing for either erroneous enlistment or fraudulent enlistment, not misconduct.  Therefore, under equity, the Applicant should have been separated for erroneous enlistment or fraudulent enlistment and that his service was honorable; as such, the Applicant should receive an Honorable characterization of service.    

Decision

Date:  20100819		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 three decisional issues for the board.  The Board completed a thorough review of the circumstance, which resulted in discharge, and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included no 6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 83 (Fraudulent Enlistment, Appointment, or Separation – one specification).  Based on the offense committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  right to consult with a qualified counsel, waived his right to submit a written statement, and requested an administrative board.  The command complied.  

The Applicant provided documentation to refute the basis for separation and characterization of service, which included an affidavit from a retired USMC Chief Warrant Officer-5 Legal Administration Officer regarding the propriety of the administrative separation process and a series of previous NDRB decisional documents to demonstrate both equity and propriety as related to the Applicant’s separation.  Additionally, the Applicant provided a copy of his current college transcripts as post-service conduct to provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant should be aware inclusion of post-service documentation alone does not guarantee an upgrade from an unfavorable discharge.  Each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct helps demonstrate whether previous in-service misconduct was an aberration or was indicative of the member’s overall character.

:  (Decisional) ()  .  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 Applicant contends that this presumption does not apply in this case because of the evidence submitted with his application.  The Applicant contends he was processed erroneously for misconduct due to the commission of a serious offense pursuant to paragraph 6210.6 of the MARCORSEPMAN.  The Applicant contends that the proper method of separation in his case should have been per paragraph 6204.2 of the MARCORSEPMAN, erroneous enlistment, or Paragraph 6204.3 of the MARCORSEPMAN, fraudulent entry into the Marine Corps.

The Applicant contended at the time of his separation, and contends now, that the recruiter directed him not to disclose pre-service mental health treatment and pre-service medical treatments.  The NDRB found this a plausible scenario and considered this as a possible reason for the Applicant’s failure to disclose fully.  However, in the enlistment processing and initial entry training process, there are multiple opportunities for new enlistees to divulge all known medical issues, including mental health diagnosis and treatment, without fear of retribution from the recruiter or penalty of prosecution under the UCMJ.  These opportunities occur at the Military Entrance Processing Station and during Recruit Training Receiving and Processing.  When provided with the opportunities to correct his record, and after being advised of the legal and administrative outcomes in the future if he failed to do so, the Applicant chose to continue to purposefully withhold pertinent material facts regarding his history of mental health diagnosis, treatment, and pre-existing medical conditions.  Therefore, separation by erroneous enlistment is not a valid narrative reason for discharge in this case; the NDRB determined the Applicant’s conduct was fraudulent due to deliberate material misrepresentation, including the omission or concealment of facts which, if know at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the Applicant’s eligibility for enlistment or induction.  

In accordance with Paragraph 6210.1b of the MARCORSEPMAN, “Misconduct involving fraudulent entry SHALL be processed under paragraph 6204.3” of the MARCORSEPMAN.  The only caveat to this directive is when the fraudulent enlistment is based on the concealment of less than honorable prior military service being withheld.  Therefore, separation due to Misconduct, commission of a serious offense, was not warranted or proper.  Pursuant to the determination above, Paragraph 6204.3 of the MARCORSEPMAN was the proper separation directive; the Applicant should have been processed for administrative separation due to Fraudulent Entry into the Marine Corps.  For this reason, the NDRB determined impropriety in the administrative separation process of the Applicant; relief, as requested, is warranted.  The narrative reason for separation shall change to “Fraudulent Entry into Military Service.” 

:  (Decisional) ()  .  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 Applicant contends that this presumption does not apply in this case because of the evidence he submitted with his application.  The Applicant contends that he was erroneously separated for misconduct due to the commission of a serious offense pursuant to Paragraph 6210.6 of the MARCORSEPMAN.  The Applicant contends that in accordance with the MARCORSEPMAN, he should have been processed under paragraph 6204.2 of the MARCORSEPMAN, erroneous enlistment, or paragraph 6204.3 of the MARCORSEPMAN, fraudulent entry into the Marine Corps.  In accordance with Decisional Issue (1) above, the NDRB concurred with the Applicant’s contention and determined, under propriety, that the Applicant should have been processed for separation in accordance with paragraph 6204.3 of the MARCORSEPMAN (Fraudulent Entry into Military Service).  Paragraph 6204.3d of the MARCORSEPMAN specifies that “a characterization of service Under Other Than Honorable Conditions may only be issued when the fraud involves concealment of a prior separation in which service was not characterized as honorable.”  Furthermore, it states that “in all other cases, the notification procedures of Paragraph 6303 will be used and service will be characterized as Honorable, General (Under Honorable Conditions), or Uncharacterized.”  In the case of the Applicant, the concealment of a prior separation does not apply.  As such, the NDRB determined that the Applicant warrants relief under propriety; the characterization of service was improperly characterized as Under Other Than Honorable Conditions and that the least favorable characterization of service the Applicant could have received was General (Under Honorable Conditions).    

:  (Decisional) ()  PARTIAL .  The Applicant contends that he served honorably, was forthright with his pre-service mental health treatment and pre-existing medical treatment when it became an issue in training, and that the common service process for addressing the discovery or presentation of disqualifying information for military service is either processing for erroneous enlistment or fraudulent enlistment, not misconduct.  In either case, a characterization of service of Honorable or General (Under Honorable Conditions) is the normal and equitable characterization of service.  The Applicant requested an upgrade in his characterization of service to Honorable.  Given relief due to propriety in Issue (1) and (2) above, the MARCORSEPMAN requires a characterization of separation greater than Under Other Than Honorable Conditions.

An Honorable discharge is warranted when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel - it is then appropriate to characterize that service under Honorable conditions.  A discharge characterization of General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.  An Uncharacterized separation does not apply to the Applicant; it is applicable only when a separation is initiated while the Applicant is a member in an entry-level status (i.e., within 180 days of enlistment).  

The Applicant contends his characterization of service should be upgraded to Honorable because of his record of service, which was good, apart from a single period of misconduct.  Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s brief service record was marred by a non-judicial punishment for violation of Article 83 of the Uniform Code of Military Justice.  Violation of Article 83 is a serious offense, punishable by punitive discharge or confinement, if adjudicated by a special or general court-martial.  The Applicant’s command did not pursue a punitive discharge but instead opted for the more lenient administrative separation process.  Additionally, standards of performance and conduct are determined by MCO P1070.12 (Individual Records Administration Manual (IRAM)) and the customs of the service.  They form the primary basis for determining the characterization of service.  Minimum acceptable honorable service average Proficiency and Conduct markings during an enlistment are 3.0 and 4.0, respectively.  Failure of a Marine to achieve either of these standards is evidence of significant negative aspects, outweighing all but the most meritorious military records.  The Applicant’s last series of Proficiency and Conduct markings were his reduction in rank markings, as required, following his non-judicial punishment.  The Applicant received a 3.0/3.0 at that time, not a 3.0/2.0 as stated in the DD-293 application for review supporting documents.  These markings comply with the guidance contained in MCO P1070.12 (IRAM).  The Applicant’s overall Proficiency and Conduct markings during his enlistment were 3.9 and 3.9, respectively.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined inequity in the characterization of service.  The Board determined the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, reflected significant negative aspects in the conduct expected of a service member.  Accordingly, the appropriate characterization of service warranted by the Applicant’s service is General, Under Honorable Conditions; an upgrade to Honorable would be inappropriate in this case. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and written statement, his  record entries, the discharge process proceedings, and the Applicant’s post-service conduct, the NDRB found the discharge was both improper and inequitable.  The Applicant should have been administratively separated in accordance with Paragraph 6204.3 of the MARCORSEPMAN, vice Paragraph 6210.6.  Therefore, the Separation Authority shall change to MARCORSEPMAN PAR 6204.3, the narrative reason for separation shall change to , and the awarded characterization of service shall   to properly reflect the Applicant’s overall conduct in service. 

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, Automatic Upgrades, 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