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Docket No. MD02-00298

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

 ex-Pvt, USMCR
Docket No. MD02-00298

Applicant’s Request

The application for discharge review, received 020123, requested that the reason for the discharge be changed.  The applicant requested a documentary record discharge review.  The applicant designated civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was three to two that the narrative reason 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 submitted

STATEMENT OF THE ISSUES
     The issue presented to this Board in this petition is whether recruiter misconduct or, at the minimum, inept understanding of the recruiting regulations by the same recruiters, should leave a recruit with a life long mark that subjects him to ridicule and lost opportunities.  Petitioner's DD-214 form, [Enclosure (1)], grossly mistates the characterization and service and the appropriate RE Code. A presentation of the fact will leave this Board with an abiding belief that this Petitioner was wronged and is entitled to relief.
     Petitioner was arrested by the Downey California Police Department on September 21, 1993 and charged by information on September 24, 1993 with violations of the California Health & Safety Code sections 11359 and 11360 (A) and Penal Code section 182 (A).  These allegations, alleging conspiracy, possession with the intent to sell marijuana and sale of marijuana, were eventually dismissed by the District Attorneys Office for the County of Los Angeles.  The Downey Police Department had made a gross mistake when they arrested Petitioner and the charges were subsequently dismissed on April 11, 1994.
     At the point in time that the charges were dismissed, Petitioner had the right to request the expungement of his records under Penal Code section 851.8 but he was uninformed about this right.
     In the following year, Petitioner began investigating the opportunities available to him with the Marine Corps Reserves.  Through his hometown recruiting office in Huntington Beach, California, Petitioner met Marine Corps recruiters F_ and B_. [Enclosure (2)] As is the routine with all prospective recruits, Petitioner was asked about his criminal history.  Petitioner honestly represented his criminal history which was the sole arrest and exoneration described above.  He had no other confrontations with the law.  After reviewing his history, these recruiters presented Petitioner with an enlistment contract on March 28, 1995 which Petitioner gladly signed. [Enclosure (3)]
     After executing the contract but before he was to report to Basic Training, Petitioner was informed that his criminal history was brought to the attention of the head of the recruiting office after a background check.  Petitioner met with the officer in charge of F_ and B_ and, after a berating for having been arrested, Petitioner presented this officer with a certified copy of the minute orders from that arrest and dismissal. [Enclosure (4)].  This apparently satisfied the officer and Petitioner reported to Basic Training on December 26, 1995,
     Within several days after arriving at Basic Training, Petitioner was confronted by several members of the staff and accused of fraudulently enlisting in the Corps by failing to reveal his criminal history. His responses were the same that he provided to the recruiting staff but to no avail.  He was informed that he would be discharged immediately.  Petitioner, denied the right to discuss this matter with counsel, executed the discharge documents and on January 8, 1996, he was discharged from the Corps.
     With his discharge, Petitioner returned home and assumed that this phase of his life was over.  Only within the past year did Petitioner learn of the consequences of his discharge.
    Petitioner obtained a copy of his DD-214 and learned that his discharge reflected that he had been discharged for fraudulent enlistment based upon the drug sale allegation under paragraph 6204.3 of the MARCORSEPMAN and was given a reenlistment code that reflects the severity of the allegation.
     On November 20, 2000, after receiving advice on the procedures to expunge arrests stemming from false or grossly mistaken police investigations under Penal Code section 851.8, [Enclosure (5)], Petitioner sought and received an order from a judge in the County of Los Angeles finding that he was factually innocent of the charges that caused his discharge from the Corps. [Enclosure (6)]
     Petitioner never committed any criminal offense at any time in his life and should not now be forced to accept discharge records that reflect a false basis.  Furthermore, 6204.3 of the MARCORSEPMAN requires the basis of the discharge to be caused by the recruit's failure to reveal a proven offense prior to enlistment.  The facts of this petition are quite clear.  Petitioner revealed the offense to his recruiters prior to enlistment and he was factually innocent of the charges.  Accordingly, Petitioner should never have been discharged in the first place for this basis and should not now be made to suffer the consequences of the errors of the recruiters and the discharge authority.
RELIEF REQUESTED
     Petitioner is respectfully requesting that the DD-214 be amended to make no reference under paragraph 25, [Separation Authority], paragraph 26, [Separation Code] and paragraph 28, [Narrative Reason for Separation] and the Reentry Code must be amended to read "RE 1A."
Respectfully submitted this 18 day of October, 2001.
Signed: T_ H_, Petitioner & K_ B_ M_, Esq. Civilian Counsel

Documentation

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

(1) DD-214 of Petitioner [1 page]
(2) Declaration of Petitioner [3 pages]
(3) Enlistment Contract [2 pages]
(4) Certified copy of Minute Order, dated August 1, 1995 [3 pages]
(5) Copy of California Penal Code section 851.8 [4 pages]
(6) Certified copy of Minute Order, dated November 20, 2000 [2 pages]

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  950328		Date of Discharge:  960108

Length of Service (years, months, days):

	Active:    00  00  17
	Inactive:  00  08  29

Age at Entry:  24			Years Contracted:  8

Education Level:  14			AFQT:  99

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMF*			Conduct:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks Found in service record book.

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:

950325:	DD Form 398-2 (Record of Military Processing - Armed Forces of the United States):  Applicant indicates the nature of offense or violation in 1993 as possession, sale, conspiracy for marijuana and that the charges were dismissed, yet marked "No" to the questions concerning the possession, use or abuse of drugs.  

951226:	Commenced initial active duty for training (recruit).

951229:	Medical evaluation by MCRD/MHU:  Pt referred as a result of “Moment of Truth” screening, relates he feels he is "going to jump out of his skin."  Pt relates he doesn't handle stress well.  He relates his Mother has “liver cancer."  He also has civilian charges pending for possession of THC with intent to sell.  Pt relates he had no knowledge of this possession.
	In summary, 24 year old reservist who signed for school money did not disclose EPTE psychiatric counseling, legal issues, perseverating [sic] on mothers illness.  No coping skills.  ELS.
	Psychiatric history:  Pt seen psychologist 2 years ago for personal problems with girl friend - "she took me for $10,000.00."
	Mental Status Exam:  moderate degree of distress, restless behavior, depressed mood, no history of hallucinations, poor-fair/impaired insight and judgment.
	Diagnoses:
	AXIS I:  Adjustment Disorder,  rule out anxiety disorder.
	AXIS II: Antisocial Traits.
	Recommendation:
	ELS unsuitable, high risk in this setting, apprised and cooperative.

960104:	Applicant notified of intended recommendation for discharge with an entry level separation (uncharacterized) by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.  The factual basis for this recommendation is due to failure upon enlistment to divulge pre-service drug abuse/sales which would have effected his eligibility at time of enlistment.

960104:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

960104:	Commanding Officer recommended entry level separation (uncharacterized) 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 failure upon enlistment to divulge pre-service drug abuse/sales.  Recruit has pending court for marijuana/hash sales.  

960105:	GCMCA [CG, MCRD, San Diego, CA] directed the applicant's entry level separation (uncharacterized) by reason of defective enlistment and induction due to a fraudulent entry (drug sales).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960108 with an entry level separation (uncharacterized) by reason of defective enlistment and induction due to a fraudulent entry - pre-service drug sales (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 Board did note an administrative error on the original DD Form 214, Block 28.  The Narrative Reason for Separation should read: “FRAUDULENT ENTRY INTO MILITARY SERVICE.”  This recommendation will be forwarded to the Commandant of the Marine Corps Headquarters, Quantico, VA, for corrective action.  No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.  While undergoing recruit training, applicant disclosed during “Moment of Truth” screening that he had been involved in the possession of marijuana with intent to sell and that he had a pending civilian court date for these offenses. While the applicant did disclose a prior arrest for drug related offenses on his DD Form 398-2, it is unclear from the record whether the applicant’s “Moment of Truth” disclosure involved new charges or the previously disclosed arrest.  In light of this ambiguity the Board determined that the resolution of this case rested appropriately on the above mentioned “presumption of regularity in the conduct of governmental affairs.”  In sum, the Board found by a 3-2 vote that the member’s “Moment of Truth” disclosure referred to drug offenses not disclosed on the DD Form 398-2 and that the applicant’s chain of command investigated this issue thoroughly prior to initiating administrative separation procedures.  For this reason, the applicant’s requested relief is denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.   The applicant is strongly encouraged to personally appear before the Board with any additional evidence pertaining to the issue upon which the Board based its decision. 

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, MCO P1900.16E), effective 18 Aug 95 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A2900/A9401/A9317/A9241/A9221