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NAVY | DRB | 2004 Marine | MD04-01448
Original file (MD04-01448.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD04-01448

Applicant’s Request
The application for discharge review was received on 20040913. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “medical or something equiv.” The Applicant requests a documentary record discharge 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 20041222. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety in the characterization of the Applicant’s service was discovered by the NDRB, however, the Board did find an inequity. The Board’s vote was unanimous that the character of the discharge shall not change but the narrative reason will be changed. The discharge shall read: UNCHARACTERIZED /SECRETARIAL AUTHORITY: MARCORSEPMAN Par. 6214, Separation Code JFF1.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ Please see attached letters. Discharged due to knee being incapable of withstanding physical requirements of boot camp. After many years of wanting to be a Marine – was able to pass physical. Knee injury was fully disclosed to Recruiter, Full examine performed at MEPS- I brought medical records and MEPS Doctors required me to stay a second day. During exam I was sent to Boston Hospitals for orthopedic exam and MRI. Knee had some pain from time to time (any knee that has surgery does) but nothing that would make me believe I could not run and become a Marine. Unfortunately during up/downs I hurt my knee. It became clear that I could not make it through basic. I was accused of hiding knee pain and this was not true I am getting ready for additional surgery at this time.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’s DD Form 214
Letter from Applicant’s father, D_ L.S_, not dated
Letter from D_L.S_ to Board of Correction of Naval Records, (4 pages) 19 Apr 04
Letter from Applicant, not dated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                030410 - 031130  COG

 Period of Service Under Review :
Date of Enlistment: 031201               Date of Discharge: 031224

 Length of Service (years, months, days):

         Active: 00 00 24
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 63

 Highest Rank: PVT                          MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: *                     Conduct: *

 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 :

030409:  Applicant’s Enlistment Physical Examination. Applicants answer to question #20 (Have you ever been treated in an Emergency Room?), “For a knee injury in 2000, ACL tear.” Applicants answer to question #21 (Have you ever been a patient in any type of hospital?), “Nov 2000, Leonard Morse Hospital, ACL Tear and Removal of Screws, artho.” Applicants answer to question #22 (Have you ever you been advised to have any operations or surgery?), “ACL reconstruct, Age 16-17”.

030409:  Report of Medical Examination: Medical Officer notes scar on right knee.

030410:  Report of Medical Examination: Block 77 and 78, additional comments: “Ortho consult reveals no instability R Knee”.
031210:  Recruit information Card: Applicant is reassigned to MRP at MCRD PI, due to prior knee problem. “SNR [Applicant] has made comments to Series Commander that he is afraid his knee, which he had prior surgery on in 2000 and 2001 to repair a torn ACL, strained MCL, torn medium meniscus will make him a liability to his future MOS even if he does make it through recruit training. SNR was screened for allegations per SOP chapter 3, paragraph A010. No allegations stated.”

031216:  Applicant completes a Voluntary Medical Statement. Applicant list Chronic Knee Pain (post surgery) as a medical problem not disclosed to the MEPS doctor. Applicant states that he disclosed the health problem to his Recruiter. Applicant states that he was not advised to conceal any information.

031216:  Medical Officer, Branch Medical Clinic MCRD PI, examines Applicant: “Subject recruit [Applicant] has a physical condition, which existed prior to enlistment. The condition is disqualifying for active duty service in accordance with the above references and would have been disqualifying at MEPS, had all facts been known at the time of enlistment physical examination. The undisclosed history is: CHRONIC KNEE PAIN POST SURGERY.”

031216:  Recruit Liaison Section, MCRD PI endorses Medical Officer examination: “Subject recruit will be processed for fraudulent enlistment due to preservice undisclosed history of chronic knee pain post surgery. No allegation towards any recruiting members.”

031217:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to a fraudulent entry into the U.S. Marine Corps, specifically fraudulent for pre-service undisclosed history of chronic knee pain post surgery.
031217:  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.
031223:  Commanding Officer, Recruit Training Regiment MCRD PI, approves recommendation for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031224 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 but not equitable (C and D).

The Applicant contends that his discharge was inequitable because he fully disclosed a prior physical condition during his enlistment physical examination. Upon review of the Applicant’s health record, the Board determined that the Applicant had properly disclosed his physical condition. In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. Since the Board determined that there was an inequity in the narrative reason, the Board directs that the narrative reason be changed to Secretarial Authority.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization. Applicant's service record did not contain any unusual circumstances during his less than 1 month in the military to warrant a change of discharge to "honorable."

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



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 5420.174D 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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