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NAVY | DRB | 2004 Marine | MD04-01002
Original file (MD04-01002.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD04-01002

Applicant’s Request
The application for discharge review was received on 20040601. The Applicant requests the reason for the discharge be changed to lift the fraudulent entry charge from the DD 214 document and change the reenlistment code. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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 reason of the discharge shall not change. The discharge shall remain: HONORABLE/ 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. “I R_ L_ M_ Jr (Applicant) (social security number deleted) respectfully request that the fraudulent entry charge be lifted from The DD 214 document an Reentry code be also changed for reason of reenlistment.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                950713 - 960630  COG

 Period of Service Under Review :
Date of Enlistment: 960701               Date of Discharge: 970918

 Length of Service (years, months, days):

         Active: 01 02 18
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 37

 Highest Rank: PFC                          MOS: 2531

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: RMB

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

970529:  Counseled for deficiencies in performance and conduct. [Applicant was UA for two consecutive ninety-sixes on 27 May for two hours and 31 March.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970701:  Medical evaluation by Emergency Room, NHCL and subsequently referred to Neurology at NHCL.

          AXIS I: Pseudo seizures
970721:  Applicant notified of intended recommendation for honorable discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps. Applicant advised the lowest characterization possible was general (under honorable conditions).
970721:  Applicant advised of 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.

970724:  Applicant’s statement.

970731:  Commanding Officer recommended honorable 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 letter from the Battalion Medical Officer and your medical history.

970819:  SJA concurred with Battalion and Regimental Commanders’ recommendation.

970828:  GCMCA [Commanding General, 2d Marine Division, II Marine Expeditionary Force] directed the Applicant's honorable discharge 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 19970918 with an honorable by reason of 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. 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 misrepresented the facts of his pre-service medical history in order to gain enlistment. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 P1900.16E), effective 18 Aug 95 until 31 Aug 2001, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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