DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

SMW
Docket No: 5388-07

23 January 2008

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD OF -\(iiiiiiAiiiiieesneipemepemeemeeess,

 

 

 
 

 

1. Pursuant to the provisions of reference (a), Petatijone:. a
former enlisted member of the United States Marine Corps, avplied
to this Board requesting to change the reenlistment code OF RE~4

that he received on 29 September 2000.

2. The Board, consisting of Ms. ie... Wie, 205

Mr. WIR reviewed Petitioner's allegations of error and
injustice on 16 January 2008, and pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.

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 Petitioner’s application was not filed in a timely
manner, it is in the interest of justice to waive the statute of
limitations and review the application on its merits.

c. On 13 March 2000, Petitioner enlisted in the Marine Corps
at age 19.

ad. On 21 July 2000, Petitioner received a psychiatric
evaluation during which he disclosed that he was diagnosed with
depression at age 15 and prescribed medication at that time. He
further stated that his depression improved, but he believed that
he relapsed and might harm himself. The evaluation concluded by

diagnosing him as having depression.
e. On 25 August 2000, Petitioner was counseled regarding
fraudulent enlistment due to his failure to disclose his
diagnosis of depression and criminal record. On 29 August 2000,
he made a voluntary statement in which he stated that he withheld
information regarding his depression and criminal history before
enlistment and believed his depression had worsened and he could

not survive in the military environment.

f. On 1 September 2000, Petitioner's commanding officer
initiated administrative separation by reason of defective
enlistment due to fraudulent enlistment. In connection with this
processing, Petitioner acknowledged that separation could result
in an other than honorable (OTH) discharge and waived the right
to have his case heard by an administrative discharge board
(ADB). On 1 September 2000, his commanding officer recommended
an OTH discharge. On 15 September 2000, the separation authority
approved the discharge recommendation and directed an OTH
discharge by reason of fraudulent enlistment. On
29 September 2000, he was so discharged and assigned an RE-4

reenlistment code.

g. In his application, Petitioner states that he disclosed the
legal and psychiatric information to his recruiter before
enlistment, but the recruiter forged his criminal record check
without his knowledge during the enlistment process. He further
states that his recruiter then advised him not to disclose this
to anyone or both of them would be reprimanded. He further
states that the statements he made at that time to expedite

discharge were false.

h. Regulations in effect at the time that Petitioner was
discharged stated that if fraudulent entry involved concealment
of a prior separation from the service in which the character of
service was not honorable, characterization would normally be
under OTH conditions. Regulations in effect at that time further
stated that an OTH characterization might be issued when the
reason for separation was based upon behavior, or omission, that
constituted a significant departure from the conduct expected of
a Marine, such as acts or omissions that endanger the security of
the Marine Corps or deliberate acts or omissions that seriously
endangered the health and safety of others.

i. Regulations published nine months after Petitioner was
discharged stated that characterization of service under OTH
conditions might only be issued when the fraud involved
concealment of a prior separation in which service was not
characterized as honorable and in all other cases service would
be characterized as honorable, general or uncharacterized.

j. Regulations further state that individuals processed for
separation under OTH conditions must be afforded ADB procedures
and separation that would result in no less than a general
characterization of service will be processed with no ADB

requirement.

k, Regulations also state that an uncharacterized separation
shall be used when separation is initiated while the individual

is in an entry level status, except when separation for
fraudulent entry is authorized and characterization of OTH is

warranted. Regulations authorize assignment of an RE-4
reenlistment code to individuals who are not recommended for

reenlistment.

 

1. Petitioner was in an entry level status at the time
administrative separation was initiated, since he had less than

180 days of continuous active service at that time.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's requests warrant partial
relief. Specifically, the Board found Petitioner met the
requirements established by regulations for an involuntary entry
level separation by reason of fraudulent entry with no ADB
requirement, but found no evidence in the record to show that
Petitioner met the requirements for an OTH characterization of
service. Given regulations that were published nine months after
Petitioner was discharged that apparently clarified the previous
regulation's intent regarding fraudulent entry, the Board
concludes that Petitioner’s separation should be changed to an
uncharacterized separation by reason of fraudulent entry with no

ADB requirement.

RECOMMENDATION:

 

a. That Petitioner's naval record be corrected to show that he
received an uncharacterized separation on 29 September 2000, vice
the OTH discharge actually issued on that date.

b. That Petitioner's naval record be further corrected to show
that he was discharged by reason of fraudulent entry with no ADB
requirement vice fraudulent entry with ADB requirement.

c. That no further changes be made.

d. That a copy of this Report of Proceedings be filed in
Petitioner’s naval record.

ee. That upon request, the Department of Veterans Affairs be
informed that Petitioner’s application was received by the Board

on 3 May 2007.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and

complete record of the Board's proceedings in the above entitled
matter.

CA \ Druaga

ROBERT D. ZSALMAN BRIAN J.‘GEORGE
Recorder Acting 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 Regulation, 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.

W. dey AA
Executive Divie oY