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USMC | DRB | 1999_Marine | MD99-00967
Original file (MD99-00967.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD99-00967

Applicant’s Request
The application for discharge review, received 990709, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 000410. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the reason for the applicant’s discharge. The Board’s vote was unanimous that the character of the discharge shall not change. The reason for the discharge shall change to: UNCHARACTERIZED/ENTRY LEVEL SEPARATION, authority: MARCORSEPMAN Par. 6205.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My undesirable discharge is improper because at the time of enlistment, my recruiter neglected to put the proper waiver in my file. He knew I had asthma as stated in accompanying letter c/o Capt. T____, Maj R____.

2. My undesirable discharge is also improper because of the letter from my civilian doctor, given to my recruiter before enlistment.

3. My undesirable discharge is also improper because at "The Moment of Truth" I again informed superior officers of the conditions (asthma) it was then charged off as an allergy to shellfish by naval personnel.

4. My integrity has been compromised due to either naval error or the neglect of recruiter, I proved my abilities and did everything in my power to bring this entire issue to view. I feel my character should not be tarnished due to error of others.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from SSgt S_____ Senior Drill Instructor Paris Island, S.C (2).
Copy of Recruit Evaluation Card (2)
Letter C_____ C. H____ M.D. from West Shore Family Practice & Pediatrics (2).
Copies of DD Form 214 (3)
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                980331 - 980419  COG

 Period of Service Under Review :
Date of Enlistment: 980420               Date of Discharge: 980512

 Length of Service (years, months, days):

         Active: 00 00 23
         Inactive: None

 Age at Entry: 21                          Years Contracted: 5

Education Level: 12                        AFQT: 49

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: N/A                  Conduct: N/A

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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 :

980504:  Medical evaluation by Medical Dispositions Officer indicate applicant has a physical condition which existed prior to enlistment and is disqualifying for Active Duty service.

980506:  Applicant notified of intended recommendation for discharge with an Entry Level separation by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.
980506:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to copies of all documents supporting his discharge.

980508:  Commanding officer recommended discharge with an Entry Level Separation by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps. The factual basis for this recommendation was admitted pre-service undisclosed history of asthma.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980512 with a uncharacterized by reason of defective enlistment and induction due to a fraudulent entry (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the reason for the discharge was not proper. (C and D).

In the applicant issues, the Board found that the applicant had asthma as a young child. The applicant provided a statement from his doctor dated Mar 16, 1998, prior to his enlistment in the Marine Corps, that stated that the applicant appeared to have “outgrown” his asthma tendency. The doctor stated that the applicant had not had an asthma attack since 1994. This led the Board to agree that the applicant did not deceive his recruiter, that he believed that he no longer had asthma, and was not enlisted fraudulently. Relief granted.

The applicant was discharged with an uncharacterized discharge, not an undesirable discharge as the applicant alleges. The applicant served only 23 days which qualifies him for only an uncharacterized discharge. To qualify for an honorable discharge one must serve 180 days or more. Relief denied.
Pertinent Regulation/Law (at time of discharge)

 A . The Marine Corps Separation and Retirement Manual,(MCO P1900.16E), effective 18 Aug 9 until present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.
B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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