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NAVY | DRB | 2004 Marine | MD04-00507
Original file (MD04-00507.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-00507

Applicant’s Request
The application for discharge review was received on 20040203. The Applicant requested the reason for the discharge be changed to “ Not able to meet fitness standards. ” The Applicant requests a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040827. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the reason for discharge and in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the reason for 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

1. “I did not fraudulently enter the service. I never tried, or had intent, to defraud the military service. I simply did not meet the physical standards required by the Marine Corps. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s father, LTC S_ C. F_, USA(Ret.) ltr to Senator H_, dtd Feb 5, 2003
Applicant’s father, LTC S_ C. F_, USA(Ret.) ltr to the Board dtd Nov 3, 2003
Applicant’s medical information< Intermountain Health Care, dtd Oct 6, 2003
Copy of DD Form 214
Character Reference ltr from Bishop L_ N. B_, dtd Feb 27, 2004
Applicant’s College Transcript (Spring 2002 – Spring 2004)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:                            None                       HON
         Inactive: USMCR (J)               010907 - 011112  COG

 Period of Service Under Review :
Date of Enlistment: 011113               Date of Discharge: 011204

 Length of Service (years, months, days):

         Active: 00 00 22
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 67

 Highest Rank: PFC (MOS: 9900 Basic Marine)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                 Conduct: NMF*

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

         *No marks found in Applicant’s service record.

 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 :

011120:  Medical evaluation by a medical officer at the Branch Medical Clinic, Marine Corps Recruit Depot, San Diego, CA during sick call the Applicant was diagnosed with a history of fractured thoracic vertebrae. This condition was not documented during the Applicant ’ s initial enlistment physical evaluation nor was a waiver granted for his unfitting condition.

Unreadable:      Applicant notified of intended recommendation for discharge with an entry level separation ( uncharacterized ) by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.
Unreadable:      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.

011120:  Commanding officer recommended discharge with an uncharacterized discharge by reason defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps. The factual basis for this recommendation was the Applicant “ being diagnosed with a history of vertebrae fracture and failing to disclose the information to MEPS or MOT. ”

011203:  GCMCA [Commanding General, Marine Corps Recruit Depot, San Diego, CA] directed the Applicant's separation with an 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 20011113 with an uncharacterized discharge 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: Under its responsibility to examine the propriety and equity of an Applicant’s discharge, the NDRB will change the reason for discharge if such a change is warranted. The summary of service clearly documents the Applicant’s failure to divulge his pre-service fractured vertebrae, which would have made him ineligible for enlistment and was the reason for his discharge. The Applicant’s failure to disclose this information constituted the fraud for which he was separated. The alleged recruiter misconduct notwithstanding, no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, civilian employment, educational pursuits, etc., an uncharacterized separation shall be considered the equivalent of an honorable or general (under honorable conditions) discharge.

 The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 P1900.16F), effective
01 September 2001 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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