Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD09-01321

ex-Pvt, USMC

Current Discharge and Applicant’s Request

Application Received:  20090409
Characterization of Service Received:  UNCHARACTERIZED
Narrative Reason for Discharge:  FRAUDULENT ENTRY INTO MILITARY SERVICE
Authority for Discharge:  MARCORSEPMAN 6204.3 (FRAUDULENT ENTRY IN SERVICE)

Applicant’s Request:  Characterization change to:  NONE REQUESTED
		       Narrative Reason change to:  REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20060620 - 20060625  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20060626	Age at Enlistment:  21
Period of Enlistment:  4 Years  0 Months
Date of Discharge:  20061221	Highest Rank:  PRIVATE
Length of Service:  00  Year(s)  05  Month(s) 26  Day(s)
Education Level:  12	AFQT:  41
MOS:  9971
Proficiency/Conduct Marks (# of occasions):  4.1 (2) / 4.1 (2)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX NDSM

Periods of UA/CONF:  NONE

NJP:  1
- 20061212:	Article 91 (Insubordinate conduct toward a NCO- Fail to acknowledge and respond)
	Awarded: FOP RESTR EPD  Suspended:  NONE

SCM:  NONE          SPCM:  NONE          CC:  NONE

Retention Warning Counseling:  3

- 20060820:	For physical condition, (ASTHMA) which interferes with duties.
- 20061114:	For violation Medical Platoon Rules and Regulation for using cell phone during working hours.
- 20061212:	For insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer by failing to acknowledge or respond to his NCO.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  ☒	                            Service/Medical Record:  ☒           Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
              Additional Statements: 
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐
                    Other Documentation:  ☐

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

Applicant’s Issues

1.  Reenlistment opportunity.
2.  Recruiter told Applicant not to mention his asthma.

Decision

Date:  20090709        DOCUMENTARY REVIEW         Location: Washington D.C.        Representation: Colorado Department
                                                                                                                                                                               of Veteran Affairs
By a vote of 5-0 the Characterization shall remain UNCHARACTERIZED.
By a vote of 5-0 the Narrative Reason shall remain FRAUDULENT ENLISTMENT.

Discussion

Issue 1: This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, Reenlistment/RE Code, regarding this Issue.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends the recruiter told him not to mention the fact that the Applicant has asthma if he hadn’t had an episode in five years.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by three retention warnings and one NJP for violation of the Uniform Code of Military Justice, Article 91 (Insubordinate conduct toward a NCO).  Documentation from Valley-Wide Health Systems, Inc. states the Applicant was prescribed an albuterol inhaler on 15 February 2001; diagnosed with asthma on 17 June 2002; and received prescriptions for an albuterol inhaler twice in 2004 and twice in 2005 (he enlisted in June 2006).  Additionally, the Applicant marked “NO” in block 10.d. of the Report of Medical History of 20 June 2006 which reads, “HAVE YOU EVER HAD OR DO YOU HAVE NOW: Asthma or any breathing problems related to exercise, weather, pollen, etc.”  Based on the Applicant’s pre-service history of asthma and his enlistment medial exam, the NDRB determined the Applicant purposely withheld his medical condition due to his desire to be a Marine; which is not uncommon, but nonetheless dishonest.  Based on the Applicant’s pre-existing condition, the enlistment would not have occurred if relevant facts had been known by Department of the Navy (DON) or had appropriate directives been followed.  The Board determined the awarded characterization of discharge, Uncharacterized, was warranted and a change in narrative reason would be inappropriate.   
  
For the edification of the Applicant, with respect to non-service related administrative matters (i.e., U.S. Department of Veterans Affairs (VA) benefits, civilian employment, etc.) an Uncharacterized separation shall be considered as the equivalent of an Honorable or General (Under Honorable Conditions) discharge.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service and Medical Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water