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Docket No. MD05-00757

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

 ex-PFC, USMC
Docket No. MD05-00757

Applicant’s Request

The application for discharge review was received on 20050330.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20050811.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service but did discern an impropriety in the reason for the discharge, and determined that partial relief is warranted.  The Board’s vote was unanimous that the characterization of service shall not change but the reason for discharge shall change.  The Board was unanimous in its decision to change the narrative reason and, by a vote of
4 to 1, the reason for discharge shall change to SECRETARIAL AUTHORITY.  Therefore, the discharge shall change to:  UNCHARACTERIZED/SECRETARIAL AUTHORITY, authority: MARCORSEPMAN Par. 6214, with a separation code of JFF1.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“At the time of my discharge I was accused of fraudulent entry into the Marine Corps for not disclosing information about my hernia.  This is inaccurate as my enlistment documents clearly show.”

Documentation

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

DD Form 214 (2 copies)
DD Form 149 Application for Correction of Military Record, dated December 7, 2004
VA Form 21-22 Appointment of Veterans Service Organization as Claimant's
    Representative, dated December 7, 2004
MCRD Form 1900/17 Recommendation for Discharge, with enclosures, dated
    November 29, 2004
MCRD Form 1910/22 Notification and Acknowledgement of Separation Proceedings
    (Board Not Required), dated November 30, 2004
Notes Record in case of Applicant, last entry dated November 29, 2004
NAVMC 118(11) Administrative Remarks (Counseling entry), dated November 30,
    2004
MCRD Form 5800/1 Excerpt from UCMJ (Article 31) and explanation of BCNR and
    NDRB, undated (2 copies)
NAVMC 11060 Separation/Travel Pay Certificate, dated December 10, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		040301 - 040912	COG

Period of Service Under Review:

Date of Enlistment:  040913		Date of Discharge:  041203

Length of Service (years, months, days):

	Active:    00  02  21
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  76

Highest Rank:  PFC			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*			Conduct:  NA*

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Not available.

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:

041123:	Recommendation for Entry Level Separation from the Branch Medical Clinic, MCRD, San Diego, CA:
	Diagnosis:  796.0 Right Inguinal Hernia.
	Condition was documented on the patient's SF88/SF93:  NO
	Official waiver granted for this condition:  NO
	Dispositions that apply:
	-- Referred for administrative entry-level separation
	-- Member has not incurred injury and/or has not aggravated pre-existing defects by active military service
	-- Member's present condition is considered "Not Physically Qualified" in accordance with the physical standards for enlistment, as opposed to physical unfitness by reason of disability, as defined in Appendix (A) of SECNAVINST 1850-4C (Disability Evaluation Manual)
	-- Member's condition is UNLIKELY to change if retained
	Comments:  PT refuses elective surgery, unable to continue in training

041129:	Commanding Officer, Support Battalion, Recruit Training Regiment, MCRD, San Diego, CA recommended that the Applicant has established a military record causing recommendation for discharge at the convenience of the government.  Commanding Officer’s comments:  "Arrived MCRD on 13 Sep 04.  On 17 Sep, IST 7/61/11:40, dropped to 2025/F.  On 05 Oct, (T-13) dropped to MRP due to Pneumonia.  While in MRP SNR reported to sick call for pain in right groin area.  SNR had documented prior hernia surgery in Nov 01 as annotated on his MEPS physical.  BMC MCRD diagnosed SNR right inguinal hernia, and referred SNR to NMCSD.  On 22 Nov, SNR evaluated at General Surgery Clinic NMCSD and diagnosed with complications s/p to plug and patch hernia repair from Nov 01.  NMCSD recommended exploratory surgery to determine cause of SNR’s current condition.  SNR refused to have the exploratory surgery.  On 23 Nov, BMC MCRD recommended ELS due to Right Inguinal Hernia.  SNR’s condition verified by exam, recruit health, prior medial history and General Surgery NMCSD.  SNR “Not Physically Qualified” in accordance with the physical standards for enlistment.  SNR’s condition unlikely to change if retained.  Medically cleared for ELS on 23 November."

041129:	Quality Control Division/Recruit Liaison Branch Officer endorses Commanding Officer, Support Battalion recommendation indicating the following:
Reason processed: Medical
Type: Fraud
Complicity Allegation: No.
QCD/RLB Officer comments:  "SNR diagnosed by BMC with R inguinal hernia.  SNR's refusal to have exploratory surgery.  ELS Med, COG."

041130:	Counseled this date for non-recommendation for reenlistment and assignment of RE code 3F by reason of Fraudulent Enlistment for Right Inguinal Hernia.
	
041130:	Applicant notified of intended recommendation for discharge due to defective enlistment (fraudulent enlistment).  Applicant further advised that he would be receiving an entry-level separation.  The factual basis for this recommendation was the Applicant's failure upon enlistment to divulge his pre-service medical condition, which would have affected his eligibility at the time of enlistment.

041130:	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.  Applicant acknowledged receipt of the written explanation of the Naval Discharge Review Board and the Board for Correction for Naval Records.  

041203:	GCMCA (Commanding General, Marine Corps Recruit Depot, San Diego, CA) informed the Commandant of the Marine Corps (MMSB-22) that the Applicant was awarded an uncharacterized discharge by reason defective enlistment (Fraud  Right Inguinal Hernia).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041203 with an uncharacterized discharge by reason of defective enlistment and induction due to a fraudulent entry (A).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the characterization of service was equitable but the reason for discharge was improper (B and C).  The Board's vote was unanimous to change the narrative reason for separation and, by a vote of 4-to1, the reason for discharge shall be “SECRETARIAL AUTHORITY.”

The Applicant contends that the factual basis for his separation was inaccurate and that there was no fraud involved in his enlistment.  After a thorough review of the Applicant's service and medical records, the Board found the following:
o	the Applicant's pre-enlistment medical screening (DD Form 2807 Report of Medical History dated 20040203 (27 days prior to his entry into DEP)) shows that he revealed to competent medical authority that he suffered from a hernia between 1998 and 2001, was advised to have surgery for that hernia, and had the hernia repaired "3-4 years ago";
o	the separation recommendation dated 20041129 from the Applicant's commanding officer clearly states in his comments that "SNR had documented prior hernia surgery in Nov 01 as annotated on his MEPS physical".
The Board concluded that, on the Applicant's part, there was no deliberate material misrepresentation, to include omission or concealment of facts, which, if known at the time, would have precluded his enlistment.  In fact, the records indicate that the Applicant provided all necessary information but this information was not acted upon by the Marine Corps according to appropriate directives.  Because of this oversight on the government's part, the Board concluded that relief on this basis is warranted.

In cases where no other reason for separation set forth in the Marine Corps Separation Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of that service member prior to the expiration of his or her term of service.  The Applicant’s chain-of-command determined that separation from the Marine Corps was warranted but used an inappropriate narrative reason for separation.  Under the authority described above, the Board changes the narrative reason for separation to SECRETARIAL AUTHORITY.  Relief is provided.

The applicant believes that his service was characterized as under other than honorable conditions, as he states in Block 4 of his DD Form 293 Application for the Review of Discharge, and requests that this characterization be upgraded to honorable.  The Applicant is advised that he did not receive a characterization of service under other than honorable conditions, as his DD Form 214 clearly shows that his service was UNCHARACTERIZED.  The Board further advises the Applicant that an uncharacterized entry-level separation is not prejudicial and that, with respect to non-service related administrative matters such as civilian employment and Department of Veterans Affairs benefits, an uncharacterized separation shall be considered as the equivalent of a separation under honorable or general conditions.  By regulation, Marines notified of intended recommendation for discharge within the first 180 days of enlistment are given an entry-level separation with uncharacterized service unless there are unusual circumstances regarding that Marine’s performance or conduct that would merit an 
honorable characterization.  The Applicant's service record did not contain any unusual circumstances during his less than three months in the Marine Corps to warrant a change of discharge to honorable.  An upgrade to the Applicant's characterization of service is not warranted and is therefore denied.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy 	Council of Review 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.