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Docket No. MD04-00043

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

ex-Pvt, USMC
Docket No. MD04-00043

Applicant’s Request

The application for discharge review was received on 20031001.  The Applicant requests the characterization of service received at the time of discharge be changed to general and the reason for the discharge be changed to “Medically incapable.”  The Applicant requests a documentary record discharge 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 20040812.  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 reason for 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.  “I was never specifically asked whether or not I had ever dislocated my shoulder or had instability in it.  I was, however, asked if I had been seriously injured in the past and I stated that I had not.  I was told beforehand that serious injuries involved hospitalization and/or surgery of some kind.  I had never been hospitalized for my shoulder dislocations, nor have I ever received surgery.  I believe a miscommunication occurred during processing and strongly feel I should not be considered a fraud.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		030324 - 030423	COG

Period of Service Under Review:

Date of Enlistment:  030324			Date of Discharge:  030521

Length of Service (years, months, days):

	Active:    00  01  28
	Inactive:  None

Age at Entry:  17 Parent Consent		Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMA*				Conduct:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No marks assigned.

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:

020409:	Applicant visited Regional Orthopedic Associates.  [He dislocated this playing basketball on 03/28/2002.  However, he dislocated this the first time on 08/03/2001.]

020809:	Applicant’s DD Form 2807-2 shows a negative response to question 2.a.2, “Have you ever had or do you now have dislocated joint, including knee, hip, shoulder, elbow, ankle or other joint”

020809:	Applicant’s DD Form 2807-1 shows negative responses to the following questions:
12.a. Have you ever had or do you now have a painful shoulder, elbow or wrist (e.g. pain, dislocation, etc).
		12.g.  Impaired use of arms, legs, hands or feet.
23.	Have you ever had any illness or injury other than those noted.
24.	Have you ever consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses.

030430:	Applicant counseled on being transferred to MRP due to a dislocated right shoulder.  Applicant will be given time to recover from his injuries.

030506:	Medical Evaluation: [Patient states this has happen 3 times within the last two years, the 3^rd time being last week.  Pt states 1^st dislocation occurred while playing basketball.  FOOSH injury.  He state he has seen a civilian doc. & … was told if this occurred a 3^rd time he would need surgery.

030513:	Medical evaluation by Medical Disposition Officer, Branch Medical Clinic: Applicant has a physical condition, which existed prior to enlistment and is disqualifying for active duty.  Applicant will be processed for fraudulent enlistment due to a preservice undisclosed history of recurrent shoulder dislocations.

030513:	Applicant’s statement: [I was told by SSgt H_ to conceal information because otherwise I would not be allowed to join the military due to my injuries.] and [I did not disclose to the MEPS doctor about my re-occurring shoulder dislocation.  I’ve had previous physical therapy for my shoulder.]

030514:	Applicant counseled on being transferred to RSP for fraudulent enlistment.

030514:	Applicant notified of intended recommendation for discharge with an uncharacterized by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

030515:	Applicant advised of 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.

030520:	Commanding officer approved discharge with an 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 your undisclosed history of recurrent shoulder dislocation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030521 with an uncharacterized by reason 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.  By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization.  Applicant's service record did not contain any unusual circumstances during his less than two months in the military to warrant a change of discharge to "honorable."  

The Applicant states, “I believe a miscommunication occurred during processing and strongly feel I should not be considered a fraud.”  However, the Applicant admitted on 13 May 2003 that he concealed information, namely his history of shoulder dislocations as evidenced by his admission on 6 May 2003.  This admission contradicted his answers on DD Form 2807-2 and DD Form 2807-1 on 9 August 2002.  No other Narrative Reason for Separation more clearly describes why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief based on this issue is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 P1900.16F), effective 
01 September 2001 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.