DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 2020-03
9 September 2003
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj:
L RECORD OF
Ref:
(a) 10 U.S.C. 1552
Encl: (1) DD Form 149 w/attachments
(2) Case Summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Marine Corps, filed enclosure (1)
with this Board requesting, in effect,
corrected by changing the RE-4 reenlistment code assigned on 17
March 1999.
that his naval record be
reviewed Petitioner's
Mr.-
Mr..* and Ms.
2. The Board, consisting of
on 20 August 2003 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.
Documentary material considered by
allegatio;s of error and injustice
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as
follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Although it appears that enclosure (1) was not filed in
timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.
c. Petitioner enlisted in the Marine Corps on 26 May 1998. On
18 September 1998, he received nonjudicial punishment (NJP) for a
four day period of unauthorized absence.
d. On 1 March 1999 the commanding officer directed that
Petitioner be separated with a general discharge by reason of
fraudulent enlistment for concealment of a preservice medical
condition on his Statement of Medical History (SF 93).
Specifically, he knowingly concealed a torn cruciate ligament and
On 17 March 1999 he was separated with a general
hemarthrosis.
discharge by reason of misconduct due to fraudulent enlistment.
At that time, he was assigned a reenlistment code of RE-4.
e. The Marine Corps Separation and Retirement Manual, section
6204, states that the SF 93 shall not be used as a basis for
processing a recruit for discharge due to fraudulent enlistment.
However, an individual may be separated due to erroneous
enlistment if the enlistment would not have occurred if the
relevant facts had been known, but there was no fraudulent
conduct on the individual's part.
Applicable directives
authorize the assignment of either an RE-3E or RE-4 reenlistment
code to an individual separated for erroneous enlistment.
f. Headquarters Marine Corps has submitted an advisory opinion
to the effect that based on Petitioner's overall record, the RE-4
reenlistment code was correctly assigned.
CONCLUSION:
In this regard, the Board notes that Petitioner was
Therefore, the Board
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
relief.
incorrectly processed for fraudulent enlistment based on the SF
93, rather than for erroneous enlistment.
concludes that erroneous enlistment should be the reason for
discharge.
reason for separation be changed to erroneous enlistment vice
fraudulent enlistment.
Accordingly, the Board recommends that Petitioner's
Although Petitioner has requested that his reenlistment code be
changed, the Board notes that the RE-4 reenlistment code is
authorized by regulatory guidance for individuals discharged due
to erroneous enlistment.
Further, the Board believes this code
was appropriately assigned to Petitioner since he received NJP,
and intentionally failed to reveal on his SF 93 that he had a
pre-service medical condition.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that he
received a general discharge by reason of erroneous enlistment on
17 March 1999.
b. That no further relief be granted.
c. That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed or completely
2
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.
d. That any material directed to be removed from Petitioner's
together with a copy of
naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
for retention in a confidential file
with no cross reference being made a
4. It is certified that a quorum was present at the Board's
review and deliberations,
complete record of the Board's proceedings
matter.
and that the foregoing is a true and
in the above entitled
ROBERT D. ZSALMAN
Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a),
has been approved by the Board on
behalf of the Secretary of the Navy.
Executive Di
3
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