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USMC | DRB | 2002_Marine | MD02-01150
Original file (MD02-01150.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD02-01150

Applicant’s Request
The application for discharge review, received 020730, requested that the reason for the discharge be changed to separation KFV or LFW, with reentry RE1, RE3G, or RE3. The Applicant requested a documentary record discharge review. The Applicant designated a Navy Reservist as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed the Navy Reservist could not be the representative, without the permission of the U.S. Navy.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030522. 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 unanimous that the character and narrative reason of the discharge shall not change. The discharge shall remain: UNCHARACTERIZED/ Fraudulent entry into the Marine Corps (administrative discharge board not required), authority: MARCORSEPMAN Par. 6204.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. My discharge was improper because I have never had NOL. Have I ever been diagnosed or treated for an ulcer of any kind prior to, during or after service. This fact negates the fraudulent discharge that was given because I did not state that I was treated & had an ulcer which is completely untrue.

2. While still in high school I had gone to see my private physician, S_ A_ T_, M.D. of the Westwood Clinic in Clackamas, Oregon regarding a sour stomach. I was 16 years old. Dr. T_ prescribed Tagamet to me before it was sold over-the-counter, solely as a precautionary measure. No test or diagnosis was ever given. After that day in May of 1992, there were not any further office visits, prescriptions or treatment pertaining to this matter.

3. While in Marine Corps basic training in February of 1994, I requested to go to medical to inquire about what I could do to remedy a sour stomach I had experienced that day. I was prescribed & submitted a stool sample to M.C.R.D. medical to be tested for ulcer evidence. I was told that the test came back negative for evidence of an ulcer. M.C.R.D. medical personnel attempted to contact my physician back home Dr. T_, but he was not available at the moment. Personnel spoke w/his colleague Dr. S_, whom I’ve never been treated or seen by, told M.C.R.D. he thought he remembered me being in his office being treated for an ulcer, according to Ensign A_ at MCRD, but did not submit any documentation supporting this and I was discharged. Doctors T_ and S_ have since retired their practice, sold their building in Clackamas, Oregon. I cannot locate their records.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Diagnostic imaging, dated March 21, 2002
Rx from doctors office, dated January 17, 2002
USMEPCOM 714DP form, dated March 26, 2002
Letter from Naval and Marine Corps Reserve Center, Portland, OR, dated March 28, 2002
Cover letter, dated August 27, 2002
Letter from former personal physician, dated September 2, 2002
Letter from Director, Medical record Department, dated August 19, 2002
Statement/explanation of circumstances, dated August 27, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                931124 - 940221  COG

 Period of Service Under Review :
Date of Enlistment: 940222               Date of Discharge: 940318

 Length of Service (years, months, days):

         Active: 00 00 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 50/59

 Highest Rank: Pvt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMA*                          Conduct: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Available

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

UNCHARACTERIZED/Fraudulent entry into the Marine Corps (administrative discharge board not required), authority: MARCORSEPMAN Par. 6204.3.

 Chronological Listing of Significant Service Events :

960304:  Medical evaluation by MC San Diego, CA . Diagnosed with possible stomach ulcer. Applicant reported “off/on ulcer pain.” Applicant’s family and civilian doctor reported history of treatment for probable ulcer.
940316:  GCMCA [Commanding General] directed the Applicant's uncharacterized discharge by reason defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.

940317:  Applicant notified of intended recommendation for uncharacterized discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.
940317:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

940317:  Commanding Officer recommended uncharacterized discharge 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 the failure upon enlistment to divulge a pre-service medical condition (stomach ulcer) which would have effected Applicant’s eligibility at time of enlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 940318 with an uncharacterized discharge 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 discharge was proper and equitable (C and D).

Issues 1-3. The Board does not consider the circumstances surrounding the Applicant’s stated condition and implied incorrect diagnosis to be of sufficient nature to warrant an upgrade to his characterization of service. No other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief is therefore denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” unless there were unusual circumstances regarding performance or conduct which would merit an “honorable” characterization. The Applicant’s service record did not contain any unusual circumstances during his less than one month in the military to warrant a change of discharge. With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization.

 Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.





Pertinent Regulation/Law (at time of discharge)

 A. Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 890627 until 950817, 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 “ afls14.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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