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USMC | DRB | 2003_Marine | MD03-00807
Original file (MD03-00807.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-00807

Applicant’s Request
The application for discharge review was received on 20030402. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224. 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/ERRONEOUS ENTRY, authority: MARCORSEPMAN Par. 6204.2.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “The Marine Corp determined that my enlistment was an erroneous enlistment based on a pre-existing physical condition. The fact of the matter is I disclosed to the “MEPS” physician prior to enlistment all physical conditions that might prevent my enlistment. Upon a second physical appointment at the Oakland Ca Meps with a military orthopedic, they cleared me for enlistment.”
The Applicant indicated additional issues were listed. None were found.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
 VA letter dated October 1, 1998
Nine pages from Applicant’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                860913 – 870310  COG
 USMCR(J)                 970611 - 970623  COG

Period of Service Under Review :
Date of Enlistment: 970624               Date of Discharge: 980109

 Length of Service (years, months, days):

         Active: 00 06 16
         Inactive: None

 Age at Entry: 30                          Years Contracted: 4

Education Level: 12                        AFQT: 65

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (2)                       Conduct: 4.2 (2)

 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/ERRONEOUS ENTRY, authority: MARCORSEPMAN Par. 6204.2.

 Chronological Listing of Significant Service Events :

971125:  Counseled for deficiencies in performance and conduct. [Diagnosed with right ulnar nerve palsy which hinders your ability to train.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971127:  Medical evaluation by medical doctor at the SMART Center. Follow up for diagnosis with right ulnar nerve palsy. EPTE (October 1995). Recommend administrative separation.

971208:  Applicant notified of intended recommendation for discharge with an entry level separation (uncharacterized) by reason of defective enlistment and induction due to an erroneous entry.
971208:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
971208:  Commanding Officer recommended discharge with an entry level separation (uncharacterized) by reason of defective enlistment and induction due to erroneous entry. The factual basis for this recommendation was that Applicant was evaluated by medical authorities and diagnosed with Right Ulnar Nerve Palsy. It was determined that this condition existed prior to enlistment. Had this condition been previously identified, Applicant would have been ineligible for military service.

971215:  GCMCA [CG, MCB, CAMPEN, CA] directed the Applicant's discharge with an entry level separation (uncharacterized) by reason defective enlistment and induction due to erroneous entry into the U.S. Marine Corps.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980109 with an entry level separation (uncharacterized) 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 fact that the Applicant was found qualified for enlistment on his entrance physical examination does not invalidate the subsequent diagnosis of a physical condition that existed prior to entry. Had this condition been previously identified, the Applicant would have been ineligible for military service. By regulation, members who are notified of the intent to administratively separate 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 six months 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.

The Applicant’s discharge characterization accurately reflects his service to his country. 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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