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USMC | DRB | 2005_Marine | MD0500314
Original file (MD0500314.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD05-00314

Applicant’s Request
The application for discharge review was received on 20041202. 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 RE-1. The Applicant requests a documentary record discharge review. The Applicant designated the Veterans of Foreign Wars as her representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030316. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety 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 change and reason for discharge shall not change. The discharge shall change to: 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. “I feel the SOI training command at Camp Lejeune, N.C. was unfair in deciding I should separate from the Marine Corps. My “medical issue” does not prevent me from training and continuing my career with the Marine Corps. I was advised not to put up a fight that it would only make things worse by asking to be retained. I was told I would stay in MRP for the rest of my four-year enlistment, and things would be miserable. Without having advice from outside council, I went with what I was told. I regret that now.”

2. “I, [Applicant], feel that my discharge from the United States Marine Corps was inadequtly given and these are the reasons why.

1. I am physically and mentally capable of performing the duties required of every Marine.

2. I have the documents to prove that the prior service medical condition is no longer existent.

3. I was told to trust my chain of command there at Camp Geiger, and they instructed me to follow their instructions on being discharged.

4. I know I didn’t disclose this medical issue on my MEPS physical upon entry into the service, but being that the doctors had me cleared as 100% better, I didn’t fell that it was a big deal.

I am currently attending the University of North Florida to further my education and better myself. My strongest desire is to be a part of the Marine Corps, and better myself as a Marine.

I made it straight through bootcamp with no problems. When I got to MCT at Camp Geiger, N.C. the weather was cold. I believe I pulled a muscle in my back when I put on a Molly pack during the second hump. I went to sickbay, and they couldn’t detect anything. It was then that I explained myself about the car accident. I was then sent to MRP to be processed out of the Marine Corps. I was a very squared away Marine my entire time of enlistment. Being in MRP, I was with many Marines who did not want to be in the Corps anymore, but I kept my spirits high, despite the circumstances and other around me. On my last statement in my discharge package [enclosure 8, written 20030424], my last sentence states: …I do not wish to be retained because I know I can’t handle the back pain that comes from duties required of me in the Marine Cops. (IE. Humps, long perods of standing, PFT.) I was “hinted on what to say/write”, so my package would process as quickly as possible. They did so many packages a day, so they didn’t care about our feelings towards what was going on. I was told by the Gunnery Sergeant that I would spend the rest of my four year enlistment sitting in MRP. He said he would make sure this took place, and that life would be miserable. That is why my incriminating last sentence says what it does. I never wanted to leave the Corps, and I’ll do anything it takes to get back in. I will not be the ignorant PFC that I was when getting out.

I am currently working at a national food chain supermarket exercising the leadership skills that I obtained at Parris Island, while I’m awaiting a response on whether Ill get the honor of serving in the United States Marine Corps again.”

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

 3. “Propriety or Equity Issue: Separation proceedings for the Marine were begun on the 180 th day of her enlistment, with the sole intent of denying the Marine an Honorable discharge.

Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.1740. The Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant enlisted in the Marine Corps on October 15 th, 2002 with the intent of faithfully and honorably serving her country. When it became apparent during training that she was having difficulty with long road marches, the Marine Corps decided that her previous treatment by a chiropractor for back treatment following a motor vehicle accident prior to enlistment constituted a breach of her enlistment contract and characterized her induction as a fraudulent entry.

The applicant enlisted in the Corps with faithful and honorable intent. She did not intend to deceive the Corps- merely to serve her nation. In the light of the evidence of record, the VFW supports the applicant’s contention that she should be accorded an honorable discharge.

The Veterans of Foreign Wars’ 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 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.1740.

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:
Applicant’s DD Form 214
Ltr of Recommendation from Council Member S___ J___, dated 041123
Ltr from K__M. S___ F.O.R.M.E Medical & Rehab dated 030211
Applicant’s discharge package (29 pages)
Marine Corps Separation and Retirement Manual (9 pages)
Photocopies from unknown book (2 pages)
Fax Coversheet dtd 030723
Health Information Disclosure Authorization (2 pages)
Medical Documentation from Houston Northwest Medical Center (7 pages)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USMCR(J)                020530 - 021014  COG

 Period of Service Under Review :
Date of Enlistment: 021015               Date of Discharge: 030519

 Length of Service (years, months, days):

         Active: 00 07 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 80

 Highest Rank: PFC                          MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (2)                       Conduct: 3.9 (2)

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

 Chronological Listing of Significant Service Events :

030218:  Counseled for deficiencies in performance and conduct: [Diagnosis of a physical condition not a disability, (cervical strain) and any resultant or aggravated condition which interferes with the effective performance of you duties]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030226:  Commanding Officer, Naval Hospital, Camp Lejeune indicated, after a review of Applicant’s evaluation and treatment plan, that the Applicant has a history of chronic cervical myotascitis secondary to a motor vehicle accident (EPTE). Applicant has been on light duty and physical therapy greater than 15 days. Civilian documentation in Applicant’s medical record clearly states she received this injury prior to enlistment. Given this documentation, strongly recommend for a separation for fraudulent enlistment.

030407:  Counseled for deficiencies in performance and conduct: [Your violation of Article 83 for your Fraudulent Enlistment]. Necessary corrective actions explained, sources of assistance provided.

030407:  NJP for violation of UCMJ, Article 83: In that PFC W___ did on or about 020529, by means of deliberate concealment of the fact that she had a cervical strain prior to enlistment in the Marine Corps, procure herself to be enlisted as a PFC in the U.S. Marine Corps, and did thereafter, receive pay under the enlistment so procured.
         Award: Forfeiture of $301.00 pay per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
030414:  Applicant notified of intended recommendation for discharge with the least favorable characterization of uncharacterized by reason of fraudulent entry into the U.S. Marine Corps.
030414:  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.

030424:  Applicant’s statement indicates the Applicant was under chiropractic care for two years prior to enlistment.

030425:  Commanding Officer recommended the Applicant’s uncharacterized discharge by reason of fraudulent entry into the U.S. Marine Corps. The factual basis for this recommendation was your fraudulent enlistment by failing to report your physical conditions (history of chronic cervical myotascitis secondary to a motor vehicle accident) prior to enlisting in the United States Marine Corps.

030513:  GCMCA [Commanding Officer] directed the Applicant's uncharacterized discharge by reason of convenience of the government due to fraudulent enlistment into the U.S. Marine Corps.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030519 with an uncharacterized discharge 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 improper but not inequitable (C and D).

Issue 1-3. Per reference (A), members whose separation proceedings begin within the first 180 days of enlistment are given characterization of service "uncharacterized" or entry-level separation. The Applicant enlisted on 20021015 and 182 days later was notified of her command’s intention to separate her. Therefore, the Board determined that the Applicant’s characterization of service should be type warranted by service record. Since the Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 83 of the UCMJ, a general discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade to honorable characterization of service. Partial relief is warranted.

The Applicant contends that her separation was “unfair” because, “[her] “medical issue” does not prevent [her] from training and continuing [her] career in the Marine Corps.” The Applicant further contends that her discharge was “inadequtly given” because she is capable of performing the tasks required of every Marine and that her medical condition no longer exists. The Applicant was separated by reason of defective enlistment due to fraudulent entry. An enlistment 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. Competent medical authority determined on 20030226 that the Applicant had an undisclosed chronic history of cervical myotascitis that existed prior to entry. The Applicant committed fraud and was subject to nonjudicial punishment on 20030407 for violating Article 83 of the UCMJ. No other narrative reason for separation could more clearly describe why the Applicant was discharged. Relief denied.

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 naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief on this basis is not warranted.

The Applicant contends that she was, “hinted on what to say/write” to be discharged, that a Gunnery Sergeant indicated the Applicant would “spend the rest of [her] four year enlistment sitting in MRP” and that, “He said he would personally make sure this took place and that life would be miserable.” The record, however, contains no evidence of any wrongdoing by a Gunnery Sergeant or anyone else involved in the Applicant’s administrative separation. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 documentation to support any claims of post-service accomplishments or any other evidence related to her discharge 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 5420.174D 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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