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Docket No. MD03-01265

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

ex-Pvt, USMC
Docket No. MD03-01265

Applicant’s Request

The application for discharge review was received on 20030722.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to medical.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  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 characterization of service shall not change and 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 stated

Applicant’s issues, as stated on the application:

“The discharge is incorrect because:

1.  I told my recruiter of the possibility of asthma and that I was never diagnosed with it.  I was informed not to say anything because it would decrease my chances of joining the U. S. Marine Corps.  I followed his advice until the moment of truth in South Carolina.  Even then, I protected my recruiter not wanting to ruin a career I was trying so hard to get.  Only later to find out when I return home, that him and other recruiters are being charged for their wrongdoings to me and many other recruits.  

2.  I was never diagnosed with asthma before boot camp.

3.  When I first got to boot camp, and before training began, I was tested for asthma and the results were negative.

4.  I later had another asthma test done, during training.  This one was positive but I was told by the doctor it was more than likely from newly developed allergies, since I never had any before.  Also, at the time I was extremely sick.

5.  Upon returning home from boot camp, I went to an Allergy specialist who confirmed I do have allergies, which I never knew I had because of the differences in environment; and that they caused the mild asthma.

6.  I was called a “fraud” because they claim I knew I had asthma.  (I not only told of the possibility, but I never had asthma)  Then my pay was stopped and taken back, leaving my account $83.84 overdrawn.  Not only do they now expect me to pay it, they are adding fees to it and telling the credit bureau I have bad debt.  And I was never even payed.”

Documentation

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

Copy of DD Form 214
Letter to Board from Capt Nelson, XO, RS Pittsburgh
Fourteen pages from Applicant’s medical record
Letter from T_ M_, M.D.
Medical evaluation dated October 31, 2002
Allergy survey results dated October 31, 2002
Bank deposit inquiry
Letter of fees from FSNB
Bad credit letter from FSNB

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		011029 - 020818	COG

Period of Service Under Review:

Date of Enlistment:  020819		Date of Discharge:  020920

Length of Service (years, months, days):

	Active:    00  01  02
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  76

Highest Rank:  Pvt

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:

020910:	Medical evaluation by BMC, PISC determined Applicant has a physical condition of asthma, which existed prior to enlistment and is disqualifying for active duty service.

020912:	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.

020912:  	Applicant advised of her 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.

020917:	Commanding Officer recommended an 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 the Applicant’s admitted pre-service undisclosed asthma. 

020917:	GCMCA [CO, RTR, MCRD, PISC] 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 20020920 with an uncharacterized (entry level separation) 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 1-6.  By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” unless there were unusual circumstances regarding performance or conduct which would merit an “honorable” characterization.  The Applicant’s service record did not contain any unusual circumstances during her less than two months in the military to warrant a change of discharge.  With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization.

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 asthma 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 she may feel that directions from her recruiter was a factor that contributed to her actions, the record reflects her disregard for the requirements of military discipline and demonstrated that she was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  Relief denied.

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 she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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

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.
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