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NAVY | DRB | 2004 Marine | MD04-01067
Original file (MD04-01067.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD04-01067

Applicant’s Request
The application for discharge review was received on 20040616. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant designated the American Legion as the 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: GENERAL ( UNDER HONORABLE CONDITIONS) /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. “Personal Statement of S_ E. P_ ( Applicant ), SSN: (deleted)

I served my country and my Corps honorably and with distinction. I had timely promotions and no disciplinary problems. I respectfully request that my discharge be upgraded from General under Honorable Conditions to a Honorable Discharge.

When I enlisted, my recruiter told me to keep quiet about my previous knee surgery, that he sent people through like that all the time and it wouldn’t be an issue. Not knowing anything about the Military, I took his word for it and did what he said, because I wanted to be a U.S. Marine. I made it through Boot Camp with 2 steel screws holding my knee together. I disclosed it to medical officer at my MOS School at 29 Palms (after it showed up on Xray) who told me not to say anything, I also showed it to the Medical Officers at my Duty Station when I got to MWCS 28 at Cherry Point and to the staff NCO's in my unit. I was always on light duty status for knee and back injuries. My repeated injuries to my knee were never an issue until it caused me to he dropped from the NCO Course which some of the Senior Staff NCO's felt made the unit look bad. The Sgt Major even tried to have me tried by Summary Court Martial (The Judge Advocate denied the request). I ended up with Office Hours and after five years of honorable service and hard work, I was reduced to Lance Cpl and given a General Discharge under Honorable conditions.

I did the best I could for five years and I believe that I deserve an Honorable Discharge.

I served my Country and Corps well. I worked hard for my Corporal’s Stripes and I sincerely believe that the reduction in grade was severe enough punishment for my poor judgement at enlistment.

I believe that I do not deserve to carry the stigma of a less than Honorable Discharge for the rest of my life. I want to be proud of my Service to our Country and Corps.

Any special consideration given this correspondence would he greatly appreciated.

S_ P_ ( Applicant )
(Signed)”





Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):
2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________
In accordance with 32 C.F.R., section 724.166 and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

Review of the service record reveals that this former member maintained satisfactory PRO/CON markings of 4.1/4.2 and earned the NDSM, GCM and REB. He received 3 counseling entries and on 000315 was awarded NJP for VUCMJ, Art. 83. Following due process notifications, he was discharged General (Under Honorable Conditions) due to fraudulent entry into the military service as authorized by MARCORSEPMAN, Par. 6204.3.
Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that his discharge be upgraded because his overall service record warrants a fully honorable discharge. He has submitted 5 pages of additional documentation attesting to his good post-service character, hard work, education pursuits and community involvement for consideration.
The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, dtd August 22, 2003
Character reference, dtd 15 Mar 04
Letter from Carteret County Government, Veteran Services, dtd April 27, 2004
Copy of DD Form 214
Certificate of Appreciation, dtd 20 April 2004
Designation Certificate, dtd Jun 21, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None                      
         Inactive: USMCR (J)               950622 - 950813  COG

 Period of Service Under Review :
Date of Enlistment: 950814               Date of Discharge: 000622

 Length of Service (years, months, days):

         Active: 04 10 09                  Inactive: None

 Age at Entry: 23                          Years Contracted: 6

Education Level: 12                        AFQT: 84

 Highest Rank: Cpl                          MOS: 2822, Electronic Switching Equipment Technician
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (14)                      Conduct: 4.2 (14)

 Military Decorations: GCM

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.

 Chronological Listing of Significant Service Events :

980721:  Counseled for deficiencies in performance and conduct. [Failure to follow instructions. Failure to return to work …] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.


990713:  Counseled for deficiencies in performance and conduct. [Lack of intestinal fortitude leading to disenrollment from the Corporal’s Leadership Course.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990813:  Counseled for deficiencies in performance and conduct. [Lack of maturity and or judgment.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990814:  Counseled for deficiencies in performance and conduct. [UA from place of duty.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991123:  Medical evaluation by the Group Medical Officer confirmed “reconstructive knee surgery on the left knee prior to entering the Marine Corps. ”

991207:  Medical evaluation by a Clinical Psychologist at Navel Hospital Cherry Point diagnosed the Applicant “with Attention-Deficit/Hyperactivity Disorder, Predominantly Inattentive Type (DSM-IV 314.00). (Applicant) endorsed these symptoms prior to enlistment, and has experienced a recurrence of these symptoms recently… He is considered not fit for duty at this time. ”

000317:  NJP for violation of UCMJ, Article 83: … did … by deliberate concealment of facts that disqualified him for enlistment, enlist in the United States Marine Corps and did thereafter receive pay and allowances.
 Awd red to E-3, forf of $667.00 per month for 2 months, and 45 days restriction and extra duties. Forf, restriction and extra duties susp for 6 mos. Not appealed.
000516:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps.
000516:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000516:  Commanding Officer recommended discharge with a general (under honorable conditions) 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 the Applicant’s “pre-service diagnosis of attention deficit disorder and the confirmation of knee surgery (imbedded screws) … which (the Applicant) failed to disclose to medical doctors at the time of enlistment.”

000526:          Applicant’s letter to his Commanding Officer waiving his right to appear before an Administrative Discharge Board, after consulting with counsel certified under UCMJ Article 27B, in favor of receiving a general (under honorable conditions) discharge.

000615:  SJA review determined the case sufficient in law and fact.

000615:  GCMCA [Commanding General, 2d Marine Air Wing] directed the Applicant's discharge with a general (under honorable conditions) 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 20000622 with a general (under honorable conditions) 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).

Issues 1 & 2: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel he did the best he could and he served with honor and distinction, the record does not support his contention of such service. The Applicant’s service record is marred by four negative page eleven counseling entries and the awarding of nonjudicial punishment (NJP) for fraudulent enlistment; thereby, substantiating the reason for his separation from the Marine Corps . Allegations of recruiter misconduct notwithstanding, the record shows the Applicant pled guilty and was found guilty of fraudulent enlistment during nonjudicial punishment proceedings. The Applicant “stated that he did knowingly misrepresent and deliberately conceal his pre-service ailments and that his enlistment was obtained by these facts.” Additionally, the Applicant entered into an agreement with the government to receive his general discharge in exchange for waiving his right to an administrative discharge review board in order to achieve his ultimate goal of being discharged from the Marine Corps “at all costs.” Finally, the record does not support the Applicant’s contention that he was discharged in retaliation for making the unit look bad by his failing out of the Corporal’s Course. It should be noted most Marines serve honorably in order to earn their honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. An upgrade to honorable conditions would be inappropriate. Relief denied.

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 P1900.16E), effective 18 Aug 95 until 31 Aug 2001, 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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