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USMC | DRB | 2005_Marine | MD0501276
Original file (MD0501276.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD05-01276

Applicant’s Request
The application for discharge review was received on 20050719. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060403. After a thorough review of the available 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) by reason of defective enlistment and induction due to a fraudulent entry.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“To whom it may concern:

I ask that my discharge be changed to honorable and that fraudulent enlistment be stricken off my records. On the grounds that I told M.E.P.S. about my shoulder and I was told not to worry about it and it was fine. They (MEPS) did some strength & durability test and said, “nothing is wrong with your shoulder.” During the forming phase of Boot camp in the “close combat physical” it is documented about my shoulder. That was 3 days after I started boot camp on Dec 14. I feel if I was going to get a “fraudulent” it should have been then not after I completed Boot camp & part of ITB. I have never been NJP, I always been either guide or squad leader in every platoon I’ve been in from Boot camp to the Med Rehab platoon. I feel that I have always been a good Marine & I don’t deserve this discharge. Thank you for your consideration. It is not my fault MEPS didn’t put anything down!!!

Sincerely, [signed] J_ W. S_ (Applicant)]”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

 “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 5420.174D, Part IV, Paragraph 403 m (7), as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with Title 32, CFR, section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, 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.

Our review of the service record reveals that this former member maintained satisfactory Proficiency/Conduct markings of 4.3/4.3 and earned the REBA. He had a single adverse counseling entry for fraudulent entry and no NJPs. The medical records reflect a pre-service history of right shoulder injuries not reported on enlistment contract. Following due process notifications, he was discharged General (Under Honorable Conditions) due to fraudulent entry into military service as authorized by MARCORSEPMAN, Paragraph 6204.5.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he informed M.E.P.S. officials about his should condition and was told not to worry about it. He has not submitted any additional documentation beyond copies of his service record 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, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

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
SF 600 (Medical record entry) dtd December 15, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20011113 – 2001210                COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20011211             Date of Discharge: 20020822

 Length of Service (years, months, days):

 Active: 00 08 12
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 4

Education Level: 14                                 AFQT: 86

 Highest Rank: PFC                                   MOS: 9900

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (1)                       Conduct: 4.3 (1)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Expert Badge.


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 :

011113:  Applicant’s DD Form 2807-1 (Report of Medical History): 
         Applicant’s answer to:
 Item 12a: Have you ever had or do you have now: Painful shoulder, elbow or wrist (e.g., pain, dislocation, etc.): “No.”
          Item 12g: Have you ever had or do you have now: Impaired use of arms legs, hands or feet: “No.”
         Item 12h: Have you ever had or do you have now: Swollen or painful joint(s): “No.”
 Item 30 (Examiners summary and elaboration of all pertinent data) contains no remarks regarding Applicant’s shoulder.
020510:  Abbreviated Limited Duty Medical Board Report: Applicant placed on limited duty for a period of 8 months.
 Diagnosis: Right Shoulder Instability.
Full medical board not required, applicant instructed to report to PSD to be made available for orders on 020529.
        
020812:  Counseling: Advised of deficiencies in performance and conduct (fraudulent enlistment in the USMC by failing to report condition (recurring shoulder pain secondary to a subluxation of the shoulder) prior to enlistment), necessary corrective actions explained, sources of assistance provided and advised being processed for administrative separation.

020812:  Applicant’s voluntary statement: “...At MEPS they said, “There’s nothing wrong with your shoulder. Don’t worry about it, you’ll be fine.””

 020822:  DD Form 214: Applicant discharged with a general (under honorable conditions) by reason of fraudulent entry into military service.

Service Record Book did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020822 by reason of defective enlistment and induction due to a fraudulent entry (A) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 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. Although there is no evidence of any misconduct during the Applicant’s period of service under review, the government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. In the absence of a complete discharge package, the Board presumed the Applicant committed some form of misconduct which justifies his general (under honorable conditions) character of service. Relief denied.

The Applicant implies that his narrative reason for separation is improper because he disclosed his medical history during enlistment processing at the Military Entrance Processing Station and on 20011215 while at Basic Training. 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. Though the Applicant claims he properly disclosed his medical history during enlistment, the Board found the evidence of record shows the Applicant failed to fully disclose his medical history. Relief on this basis is denied.

The Applicant contends, through his representative, that his discharge should be changed due to his post-service accomplishments. 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 any post-service documentation for the Board to consider. 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. 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 V, Para 502, Propriety .

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

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .




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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