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USMC | DRB | 2001_Marine | MD01-00369
Original file (MD01-00369.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD01-00369

Applicant’s Request
The application for discharge review, received 010202, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the AMERICAN LEGION.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was four to one that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. This discharge for unlawful entry should be reviewed for the following reasons.

 (1) Prior to entering the USMC, MY PERSONAL doctor advised me he did not think my knees were bad enough to forgo military.

(2) Upon advising Recruiter of above, he advised me not to disclose prior medical history

(3) After completion of Boot Camp - problems with my knees returned. Upon disclosing prior medical history, I was discharged for unlawful entry.
Submitted by American Legion:
2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's ltr to the Board dtd Feb 18, 2001
Copy of DD Form 214 (2 copies
1999 Blinn College Student Schedule

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                980624 - 990606  COG

 Period of Service Under Review :
Date of Enlistment: 990607               Date of Discharge: 000112

 Length of Service (years, months, days):

         Active: 00 07 06
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 74

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency:     NMF                        Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3. [In absentia]

 Chronological Listing of Significant Service Events :

950911:  Pre-Service Medical Documentation: from Brenham Clinic: 15 year old with recurrent epistaxis. This has been happening over a period of a month to 6 weeks. It is controlled easily.

990203:  Pre-Service Medical Documentation from Brenham Clinic: 17 year old male with approx 3 year history of intermittent knee pain. He states that his knee swells somewhat but main problem is he has significant knee pain and feels like it shifts out of place. However, he does not remember any specific significant injury.
ASSESSMENT: GIVING WAY AND KNEE PAIN OR UNKNOWN ETIOLOGY
PLAN: Think it is possible Pt may have medial meniscal tear but at least clinically not positive that he has a significant ligamentous injury. Pt is going to be going into Marine Corp this summer and think that currently with his knee function the way it is that he would not tolerate the rigors of boot camp. Plan to do an MRI of left knee and give him some quad exercises and have him follow up after the MRI is performed.

 990208:  Pre-Service Medical Documentation from Brenham Clinic: MRI reports which shows small effusion but no defect of ligament cartilage.
 IMPRESSION: RIGHT KNEE ARTHRALGIA.

 991028:  Medical evaluation by SMART Clinic, NavHosp Camp Pendleton: This 18 year old Marine presents himself as directed today for further evaluation of his left knee pain which he states he has had for about 2 years. Initial eval at SMART Clinic entertained patello femoral pain syndrome and ITBS. Physical therapy and self strengthening exercises were initiated. He mentioned that he had injured his knee prior to enlisting in the Marines, he was diagnosed via MR with small joint effusion and partial tear of the anterior cruciate ligament. He did not mention this condition upon enlistment. On exam today he has a stable joint with no evidence of swelling. When offered the opportunity for surgical correction and rehabilitation, he states "I don’t have it in me to be a Marine…" Rehabilitation is the key stone of recovery, however the pt must be an active participant of his self recovery. I doubt this individual will be of further value to the Marine Corps. He does not want to improve his condition, and his enlistment is compromised by fraud.

991028:  Applicant provided the following statement: "I have had knee problems for a couple of years. Upon signing with the Marine Corps I told my recruiter about them he told me to keep my mouth shout and don't worry. While in the Marine Corps I have hurt my knees 3 times. The doctors were not aware of my previous injuries.”

991103:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.
991103:  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 obtain copies of the documents used to support the basis for the separation.
991104:  Commanding officer (School of Infantry) recommended discharge under other than honorable conditions 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 due to member's failure to fully disclose during the induction process required information regarding his pre-service knee injury and had relevant facts been full known at time of enlistment, his eligibility for military service may have been adversely affected.

991206:  SJA review determined the case sufficient in law and fact.

991208:  GCMCA, CG, MCB, Camp Pendleton, directed the applicant's discharge under other than honorable conditions by reason defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged in absentia on 000112 under other than honorable conditions by reason 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 discharge was proper and equitable (C and D).

 Issue 1. The NDRB carefully considered the applicant’s issue that discussed his fraudulent entry into the service and mitigating factors surrounding his fraudulent enlistment. The Board determined this issue has no merit. The record shows the applicant entered the service with a bad knee. On the enlistment physical the applicant disclosed a “slight ingrown toe nail on his right foot” as his only ailment when in fact he had suffered repeated knee problems in his youth. The applicant states that his recruiter told him to lie. There is no evidence in the record supporting any misconduct by his recruiter. The record shows the applicant entered the service through intentional non- disclosure of a serious medical condition which would have disqualified him for service. The Board found the Other Than Honorable discharge accurately describes the applicant’s service. Relief denied.

 The applicant’s second issue states: “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant failed to provide documentary evidence to support his request for relief based on this issue. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .




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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.af.mil ”.

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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