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USMC | DRB | 2003_Marine | MD03-01300
Original file (MD03-01300.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD03-01300

Applicant’s Request
The application for discharge review was received on 20030516. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant selected the Veterans of Foreign Wars as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514. 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
Applicant’s issues, as stated on the application:

1. “ When I enlisted, I was totally under the belief that I did not have asthma as that is the last information I had received from a physician. I did not enter the military under any type of fraud. I was, and still am, being completely honest and truthful concerning this matter.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2. “We concur with the applicant that his discharge should be upgraded.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Authorization for release of information (4 pp.)
22 pages of civilian medical records
Letter from La Salle County Veterans Assistance Commission (2 pp.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                010608 - 020519  COG

 Period of Service Under Review :
Date of Enlistment: 020520               Date of Discharge: 020617

 Length of Service (years, months, days):

         Active: 00 00 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 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):

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

 Chronological Listing of Significant Service Events :

020606:  Medical evaluation by BMC, MCRD. Diagnosed with asthma, EPTE. Recommended for administrative separation.

020607:  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 Applicant was diagnosed with asthma after reporting to sick call with breathing difficulties. Applicant revealed that he had been treated for asthma in the past but did not disclose this at MEPs or the Moment of Truth.
020612:  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.
020612:          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.
020617:  GCMCA [CG, MCRD, SDCA] directed the Applicant's uncharacterized discharge 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 on 20020617 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).

Issues 1 and 2. An enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts which, if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect the Marine's eligibility for enlistment or induction. There is credible evidence in the record that the Applicant failed to report a pre-service history of treatment for asthma. The statements and documentation provided by the Applicant do not refute the presumption that the Applicant was responsible for the fraud. Relief is therefore denied.

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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