DEPARTMENT OF THE NAVY

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

 

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Docket No: 3536-08
25 February 2009

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

REVIEW NAVAL RECORD OF

     

Ref: (a) 10 U.S.C. 1552
{b) MCSM 1910.16F
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, an

enlisted member of the Marine Corps, filed enclosure (1) with
this Board requesting that his uncharacterized entry level
separation and fraudulent entry narrative reason for separation
from his previous enlistment be changed. His request also
implies the change of his “JDA1” separation code.

2. The Board, consisting of Mr. ee “is. Vm, and Mr.
iebiipe ceviewed Petitioner's allegations of error and

injustice on 24 February 2009 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. Enclosure (1) was filed in a timely manner.

c. Petitioner enlisted in the Marine Corps on 22 March 2004

at the age of 20. Although he served for a brief period, he did
so without disciplinary incident.
d. Approximately three weeks into basic training, on or about
13 April 2004, Petitioner complained of bréathing complications.
As a result, he was dropped from recruiting training due to the
possibility of asthma. Subsequently, Petitioner disclosed a
prior history of receiving treatment for asthma 3-to-5 years
prior to his enlistment.

e. On 28 April 2004, following a medical examination,
Petitioner was diagnosed with asthma, a condition that existed
prior to his enlistment. The medical record reflects that
Petitioner had not disclosed his history of asthma prior to
enlistment, and that had he disclosed this information, he would
have been disqualified for entry at a Military Entrance
Processing Station (MEPS). At that time he was recommended for
separation due to his failure to disclose the foregoing medical
condition.

 

f. Subsequently, Petitioner submitted a written statement
regarding his medical condition which noted, in part, as follows:

He was not aware of this medical condition before entering
MEPS and therefore did not disclose the information; and
that he was aware of inhaler usage in the past, but not for
use due to any form of asthma.

g. On 29 April 2004 Petitioner was notified of pending
administrative separation by reason of fraudulent entry due to
his failure to disclose a pre-service medical condition,
specifically, asthma. There is no indication in the record that
Petitioner had any other problems in recruit training.
Nonetheless, he waived his right to submit a statement of
rebuttal regarding separation by reason of fraudulent entry and
he did not object to the separation.

h. Subsequently, Petitioner was processed for separation due
to the diagnosed asthma and on 6 May 2004 was issued an
uncharacterized entry level separation by reason of fraudulent
entry and assigned an RE-3P reenlistment code.

i. In his application, Petitioner states that he has
reenlisted in the Marine Corps Reserve. In this regard, it is
presumed that he is serving without any medical problems. He
also states that he would like to obtain employment with law
enforcement upon his completion of active duty with the Marine
Corps Reserve, and that the ‘fraudulent entry’ narrative reason
for separation may hinder his opportunity to do so.
4. Reference (b) authorizes separation by reason of
“erroneous enlistment-other” if a Marine failed to meet the
regular physical standards, and was “not aware” of a defect
and/or medical condition prior to entry in the Marine Corps.
Separation for this reason also requires the assignment of a
“HFC1” separation code.

CONCLUSION:

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
partial action.

The Board believes that Petitioner, although aware of inhaler
usage prior to his enlistment, was not aware of ever being
diagnosed with any form of asthma during his teenage years. The
Board further believes that the use of an inhaler does not
necessarily constitute having any form of asthma.

The Board notes that Petitioner was only separated by reason of
fraudulent enlistment because it was believed that he did have
knowledge of this medical condition prior to entry. The Board
further notes that Petitioner has since reenlisted in the Marine
Corps Reserve and is presumably serving without any medical
problems with an asthmatic condition. As such, the Board
believes that no useful purpose is served by continuing to have
Petitioner’s record reflect a fraudulent enlistment. In this
regard, and as an exception to policy, the Board concludes that
the narrative reason for separation should be changed to
erroneous enlistment and the separation code appropriately
changed to HFC1l.

The Board also notes that due to Petitioner’s brief period of
service, while serving in paygrade E-1, an uncharacterized entry
level separation is authorized and appropriate, and therefore
should not be changed.

RECOMMENDATION :

a. That Petitioner's naval record be corrected by changing
the narrative reason for separation, assigned on 6 May 2004, to
erroneous enlistment-other.

b. That in accordance with the guidelines of reference (b),

Petitioner's naval record be corrected by changing the separation
code “JDA1” assigned on 6 May 2004, to “HFC1.”
ec. That no further relief be granted.

d. That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed, or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.

e. That any material directed to be removed from Petitioner's
naval record be returned to the Board, together with a copy of
this Report of Proceedings, for retention in a confidential file
maintained for such purpose, with no cross reference being made a
part of Petitioner's naval record.

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. . }
- ROBERT D. ZSALMAN BRIAN \ 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. DEAN PFE
Executive di