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NAVY | DRB | 2004 Marine | MD04-00949
Original file (MD04-00949.rtf) Auto-classification: Denied


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

ex-Pvt, USMC
Docket No. MD04-00949

Applicant’s Request
The application for discharge review was received on 20040518. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022. 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/Defective Enlistment & Induction – Erroneous Enlistment (without admin discharge board), authority: MARCORSEPMAN Par. 6204.2.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Please change my character of discharge. Upon entering on active duty; my intentions were to serve my country until I was eligible for discharge. I would like to be eligible for veteran preference .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR           930414 – 930616  COG
 USMCR(J)                 930619 - 930621  COG
Period of Service Under Review :
Date of Enlistment: 930622               Date of Discharge: 930804

 Length of Service (years, months, days):

         Active: 00 01 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 64

 Highest Rank: Pvt                          MOS: 9971

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: None                          Conduct: None

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNCHARACTERIZED /Defective Enlistment & Induction – Erroneous Enlistment (without admin discharge board), authority: MARCORSEPMAN Par. 6204.2.

 Chronological Listing of Significant Service Events :
930730:  Counseled due to recommendation for entry level separation due to right knee pain.



930802:  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 as evidenced by the preservice medical condition of osteochondritis dissicans right medial femoral.
930802:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
Undated:         Commanding Officer recommended discharge by reason of defective enlistment and induction due to erroneous entry. The factual basis for this recommendation was the Applicant’s right knee pain. Applicant was a below average performer. Right knee pain does not permit him to continue in training.

930804:  GCMCA [CG, MCRD, SDCA] directed the Applicant's discharge with an entry level separation (uncharacterized) by reason of 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 19930804 with an entry level separation (uncharacterized) by reason of defective enlistment and induction due to an erroneous 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 Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
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 two 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 inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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 P1900.16D, 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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