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USMC | DRB | 2006_Marine | MD0600220
Original file (MD0600220.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD06-00220

Applicant ’s Request
The application for discharge review was received on 20051116 . The Applicant requests that the Discharge Characterization of Service received at the time of discharge be changed to honorable , general (under honorable conditions) or entry level separation or uncharacterized . The Applicant request ed a documentary record discharge review . The Applicant did not designate a representative on the DD Form 293. On 20060517, a s ubsequent application for discharge review was received, wherein the Applicant requested that the Narrative Reason for Separation be changed to “medical” and to appear at a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. Applicant failed to appear for his personal appearance hearing, therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070419. 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 and the reason for discharge shall not change. The discharge shall remain Uncharacterized by reason of defective enlistment and induction due to a fraudulent entry.

PART I - ISSUES AND DOCUMENTATION


Decisional Issues

Propriety – Basis for discharge
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant ’s DD Form 214 (Member 1 and 4) (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20040220 - 20040301       COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20040302              Date of Discharge: 20040902

Length of Service (years, months, days):

 Active: 00 0 6 0 1
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4
Education Level: 12                                 AFQT: N/A *

Highest Rank: Pvt                                    MOS: 9900

Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3. 6 (2)                                Conduct: 3.5 (2 )
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Marksman Rifle Badge, National Defense Service Medal

*AFQT Not Available in the 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 :

040709:  Camp Geiger Branch Clinic, Camp Lejeune, NC. Patient (Applicant) follow-up for continued back pain. Seen by HMC H_ 29 Jun 04, no improvement with motrin/rest.
         Assessment: Back strain lumbar. Back strain thoracic. Sleep disorders.
         Disposition: Released with work/duty limitations. Follow-up in 4 days.

 040714:  Naval Hospital Camp Lejeune, Sports Medicine Clinic. Applicant referred to Clinic due to backache. Applicant states that he has low back pain for a year, significant history of trauma to back with 300lb concrete sack fell on his back. Applicant had 6 months of PT, MRI, CT, ORTHO, Neurosurgery evaluations last year. Applicant did not disclose information on entrance physical examination.
         Disposition: Given significant history of trauma and workup, not disclosed on entrance physical, it is the Provider’s opinion that this individual will continue to have significant difficulties in training and in the Fleet and therefore will recommend AD SEP for fraudulent enlistment.

 040717 :  Counseling: Advised of deficiencies in performance and conduct ( Your diagnosed physical condition not being a disability, (back pain/sleep disorder) and any resultant or aggravated condition which interferes with the effective performance of your duties. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
040722:  Camp Geiger Branch Clinic, Camp Lejeune, NC. Admin note: Received medical records of extensive evaluation and treatment of post concussive syndrome and chronic low back pain. Neither condition revealed at MEPS screening. Given the patients current complaints of chronic back pain and history of unsuccessful treatment prior to entry. Recommend ADSEP, PCNAD, EPTE. Not revealed at MEPS. V.L. L_, LT MC, USNR.





040728:  Commanding Officer, Naval Hospital, Camp Lejeune. The subject named Marine’s (Applicant) evaluation and treatment plan had been reviewed by by Lt L_, Senior Medical Officer, Camp Geiger Branch Medical Clinic.
          Private G_ ( Applicant ) is a 20-year-old male with Lumbar Back Strain and Thoracic Back Strain.   Private G_ ( Applicant ) is recommended for administrative separation for Lumbar Back Strain and Thoracic Back Strain which existed prior to entry (EPTE) and was not revealed on the military entrance physical examination at MEPS. This is a physi cal condition, not a disability (PCNAD).

040816 :  NJP for violation of UCMJ, Article 83: In that Private G_, J_ K. ( Applicant ), U.S. Marine Corps, by means of deliberate concealment of the fact that he suffers from back pain, procure himself to be enlisted as a Private in the United States Marine Corps, and did, thereafter, on or about 040302, receive pay under the enlistment so procured.
         Award: Forfeiture of $ 278.00 per month for 1 month, restriction for 14 days. Forfeiture suspended for 6 months. Not appealed.
040818 :  Applicant notified of intended recommendation for discharge as uncharacterized by reason of fraudulent enlistment. The factual basis for this recommendation was your fraudulent enlistment by failing to report your physical condition (lumbar back strain and thoracic back strain) that existed prior to enlisting in the United States Marine Corps. Applicant informed the least favorable character of service possible was uncharacterized.

040818 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040818 :  Commanding Officer, Headquarters and Support Battalion, School of Infantry, Training Command, Camp Lejeune , recommended to Commanding Officer, School of Infantry, Training Command, C amp Lejeune that the Applicant be discharge d by reason of fraudulent enlistment with a characterization of service of uncharacterized .

040824:  Applicant found medically qualified for separation.
040825:  Applicant’s written statement to his Commanding Officer. Applicant states that he does not wish to be retained.
040830 :  Commanding Officer, School of Infantry, approve d the Applicant 's discharge with an uncharacterized service by reason of convenience of the government due to a fraudulent enlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040902 by reason of defective enlistment and induction due to a fraudulent entry (A) with a service characterization of uncharacterized. 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).
Propriety – Basis for discharge: The Applicant contends that his recruiter told him not disclose information about having a prior back injury. Also, the Applicant contends that prior to enlisting his doctors told him that he was fully recovered from his back injury.

 Marines who procure a fraudulent enlistment or period of active service will be processed for separation unless the fraud is waived or the fraud no longer exists. 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. The Board found that the documentation and statements provided for review do not refute the presumption that the Applicant deliberately misrepresented his medical condition during the enlistment process, 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. In addition, the documentation available for review did not refute the presumption that his lumbar back strain and thoracic back strain still existed during the time of his enlistment. No other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. The Applicant was notified of the Commanding Officer’s intent to administratively discharge him on the 169 th day of his military service. Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his less than 7 months in the military to warrant a change of discharge to honorable, therefore, relief is not warranted.

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.
Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the 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 following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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