Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD02-00700

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

 ex-PFC, USMC
Docket No. MD02-00700

Applicant’s Request

The application for discharge review, received 020418, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant designated the Arkansas Department of Veterans Affairs as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131.  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 unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Submitted by the Arkansas Dept. of Veterans Affairs:

Reference:  A)5730 ADJ, 25 Jun 01

THE DISCHARGE IS IMPROPER BECAUSE OF THE FOLLOWING:

1.  The Commanding Officer (Reference A) stated; "For the entrance physical at the recruiting station, the medical representatives logged in his large and obvious scars as rope burn injuries."  He also stated "since the investigation also revealed that the recruiting stations medical examiners missed the obvious signs of surgery during SNM's pre-enlistment physical, it is not wholly his fault for gaining enlistment."

     a.  It is obvious, that a somewhat proficient medical examiner could distinguish a rope burn from a surgical scar.  Especially, as noted in Reference A, since the surgical scars are in three areas of the Applicant's body (the knee and both shoulders).  This clearly points to purposeful oversight of his medical conditions for some reason.  At this point, the recruitment of the Applicant should have been stopped.  The commanding officer accepted Staff Sergeant R_'s version of what happened at the recruiting station as fact (reference A, Paragraph C.)  No weight was given to the Applicant's testimony.  It appears as though this is a case of he said he said.  The He's being a Staff Sergeant and a Private, with more weight given to the Staff Sergeant's testimony.

     b.  The Applicant was enthused at becoming a Marine and accepted whatever the recruiter told him.  It is obvious that his condition was and/or should have been known at the time of recruitment.  The Applicant contends that he was open and truthful with the recruiter and that they knew of his condition at the time of recruitment and that he did nothing fraudulent.

The Applicant respectfully requests that the Board reconsider his case and rule favorably.

Documentation

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

Copy of DD Form 214
Copy of DD Form 215
Applicant's Parents letter dated June 15, 2001, to Captain A_
Congressional/Special Interest Correspondence from CO, Marine Corps Communication-Electronics School Training Command, Twentynine Palms, to CG MATFTC dated June 25, 2001
Character Reference letter from E_ H_, Dir. Of Park and Recreation, dated March 3, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		001109 - 001210	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  001211		Date of Discharge:  010920

Length of Service (years, months, days):

	Active:    00  09  10
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  13			AFQT:  45

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2			Conduct:  4.2 (from CO’s letter)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Expert Badge

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  MARCORSEPMAN Par. 6204.3.

Chronological Listing of Significant Service Events:

010420:	Medical Board Report, Orthopedic Clinic:  This is a 22 year old male, USMC active duty with five months of active military service, appeared before a Medical Board as an outpatient in the Orthopedic Department at Naval Hospital, Twentynine Palms, CA with the primary diagnosis of:
1 - Right shoulder instability, surgically treated.
2 - Left shoulder instability, surgically treated.
3 - Left knee meniscus tear, surgically treated.
	History reveals this pt had injuries prior to enlistment.  Specifically, he states that he hurt both shoulders and his left knee while playing football, both at the high school and college level… Pt states that the recruiter told him to ignore the fact that he had previous surgery and told him to say that his surgical incisions were "rope burns."  Pt had extreme difficulty in boot camp with both shoulders and his left knee.  Currently he has inability to run any significant distance or to do pushups or pull-ups without severe pain... Currently the pt does not desire any further surgical treatment, which is reasonable.
	SUMMARY OF DIAGNOSES:
1.  RIGHT SHOULDER INSTABILITY, SURGICALLY TREATED, #718.81, EPTE.
2.  LEFT SHOULDER INSTABILITY, SURGICALLY TREATED, #718.81, EPTE.
3.  LEFT KNEE MENISCUS TEAR, SURGICALLY TREATED, #836.0, EPTE.
Medical Board agrees with above diagnosis.  It is the opinion of the Board that member does not meet the minimal standards for enlistment or induction as set forth by MMD-Chapter_.  It is the further opinion of the Board that this member is unfit for further Marine Corps service by reason of physical disability and the physical disability was neither incurred in nor aggravated by period of active military service.  Recommendation of the Board that the member be discharged in accordance of BUMEDINST 1910.2 series.

010820:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

010820:  	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.

010820:	Commanding Officer recommended discharge under other than honorable conditions 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 due to Applicant's medical condition that was disqualifying for service and Applicant did not disclose upon enlistment.  Commanding Officer also stated:  "Private First Class (Applicant)'s average in service Proficiency and Conduct marks are 4.2/4.2.  His most recent Proficiency and Conduct marks were 3.9/3.9.”

010827:	GCMCA [CG, Marine Air Ground Task Force Training, Twentynine Palms] directed the Applicant's discharge under honorable conditions (general) by reason of 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 010920 general (under honorable conditions) by reason of 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.  A Marine separated for fraudulent entry is normally separated under honorable conditions (general discharge).  While the Applicant may feel that his recruiter and initial medical examiner contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his failure to disclose prior surgeries.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.

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
		Washington Navy Yard DC  20374-5023	
		720 Kennon Street SE Rm 309

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:   A0600/A9405/A9217/A9221