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

ex-PFC, USMC
Docket No. MD03-01143

Applicant’s Request

The application for discharge review was received on 20030617.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293. Subsequent to the application, Applicant chose the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  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 and 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 stated

Applicant’s issues, as stated on the application:

1.  “The discharge is improper because recruit was under age and told to lie by military personnel while under their sole custody after parent had signed for him to sign his name legally.  This is a violation of the rights of a parent - and it was a violation of recruit’s rights as a citizen.  Also, if needed, I would like to bring formal charges against Sgt J_ F_ and/or USMC for fraudulently enlisting a minor.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized Discharge to that of a General Under Honorable Conditions, with removal of the narrative reason for separation of Fraudulent Entry Into Military Service to that of Convenience of the Government.

The FSM served on active service from June 17, 2002 to July 12, 2002 at which time he was discharged due to fraudulent entry, after 26 days of active duty. 

The FSM contends the current discharge is improper because he was only following the instructions of the Non-Commissioned Officer (NCO) of the United States Marine Corp. (USMC), Sgt. J_ F_ who recruited him into active service.

To continuously punish a young man who was only following the instructions of an NCO in the U.S.M.C., the later of which is supposed to exemplify the standards of said military branch and be an individual who all new recruits can look up too, and respect, is an in-justice.  The FSM may have lied about his left knee disability, but he did so at the insistence of the recruiter.  If the FSM had not lied about his knee, the MEP review would have returned him home without enlistment and the recruiter knowing this, would not have gotten credit for the enlistment.

Therefore there is a reasonable plausibility that the FSM and his mother are telling the truth.  In as much, there is good cause to provide relief to this FSM so that he may develop into a more productive member of society, than the current discharge will allow.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Convenience Of The Government, removing the notation of fraudulent entry.  As to the request of the change of discharge to reflect a General discharge we leave that to a determination by the Board.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

Copy of DD Form 214
Letter from Applicant’s mother
Letter from Applicant
Letter from Congressman B_ C_ to Applicant’s mother
Letter to Congressman from Applicant

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		010622 - 020616	COG

Period of Service Under Review:

Date of Enlistment:  020617		Date of Discharge:  020712

Length of Service (years, months, days):

	Active:    00  00  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  5

Education Level:  12			AFQT:  85

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  None			Conduct:  None

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

020627:	Medical evaluation by recruit SMART center.  Diagnosed with history of Osgood Schlatter’s Syndrome in left knee.

020702:	Commanding Officer recommended an entry level separation 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 Applicant’s diagnosis with left knee Osgood Schlatter’s Syndrome that existed at age 13. 

020708:	Applicant notified of intended recommendation for uncharacterized discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

020708:  	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.

020712:	GCMCA [CG, MCRD, SDCA] directed the Applicant's uncharacterized discharge 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 20020712 with an entry level separation (uncharacterized) 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).

Issues 1 and 2.  The Board’s regulations limit its review to a determination on the propriety and equity of the discharge.  An enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts that, if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect the Marine's eligibility for enlistment or induction.  The Applicant was diagnosed to possess a medical condition concerning his left knee that existed prior to entry on active duty and would have likely precluded enlistment.  The statements and documentation provided for review do not refute the presumption that the Applicant was responsible for the fraud.  While he may feel that his youth and directions from his recruiter were factors that contributed to his actions, the record reflects his disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  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
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023