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USMC | DRB | 2003_Marine | MD03-00456
Original file (MD03-00456.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00456

Applicant’s Request
The application for discharge review was received on 20030123. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the
Application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.

Issues submitted by Applicant’s counsel/representative ( DISABLED AMERICAN VETERANS):
“1. Equity regarding the character of discharge.

2. The Applicant’s contentions are thoroughly outlined on DD293, which is of record. He states he was not sure what age he found out he had matoidinitis, and he was not sure when he found out about his chronic hearing loss. But he knew he had drainage. He informed his recruiter (SSgt M_) he had some drainage in his ears. He further states his mother knew about his ear problems, but he wasn’t sure on all of it. Therefore, in the interest of justice, it is respectfully requested that the Board consider all mitigating and extenuating circumstances in this case, and render a fair and equitable decision. Certainly, we request that where reasonable doubt should arise with respect to his application that any and all doubt be resolved in his favor.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from L_ J. B_, MD, FACS

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                000919 - 010812  COG

 Period of Service Under Review :
Date of Enlistment: 010813               Date of Discharge: 010911

 Length of Service (years, months, days):

         Active: 00 00 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 31

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: None                          Conduct: None

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

ENTRY LEVEL SEPARATION/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

 Chronological Listing of Significant Service Events :

000919:  Enlistment physical reports no abnormality with Applicant’s ears.       

010827:  Applicant disclosed that he knew he had chronic hearing loss and drainage prior to commencing active duty.      

010827:  Medical evaluation by Medical Dispositions Officer, BMC, PISC found that Applicant had a physical condition which existed prior to enlistment and is disqualifying for active duty. The undisclosed history is chronic mastoiditis-chronic ear drainage and hearing loss.

010831:  Applicant notified of intended recommendation for entry level separation by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.
010831:          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.

010905:  Commanding Officer recommended entry level separation (uncharacterized) 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 Applicant admitted to pre-service undisclosed history of chronic mastoiditis/chronic hearing loss and was dropped from training to Medical Rehabilitation Platoon for mastoiditis/chronic ear drainage.

010905:  GCMCA [CO, RTR, PISC] directed the Applicant's entry level separation by reason of 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 on 20010911 with an uncharacterized service (entry level separation) 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. 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. Relief denied.

Issue 2. The Applicant’s failure to report his medical problem with his ear is considered a fraudulent enlistment. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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 . The Marine Corps Separation and Retirement Manual, MCO P1900.16E), effective 18 Aug 95 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 “ 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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