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USMC | DRB | 2006_Marine | MD0600285
Original file (MD0600285.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. MD06-00285

Applicant’s Request
The application for discharge review was received on 20051122 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “ m ed ical reasons .” The Applicant requests a personal appearance discharge review before a traveling panel. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in Washington, DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061025 . 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 reason for discharge sh all not change. The discharge shall remain Uncharacterized 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:
“ Issue One: I believe the character of service should have been honorable instead of uncharacterized. Even though I served for only a month my intentions to serve my country were honorable. I performed by duties until the pain got too severe to continue but this was a medical problem not a character problem.

Issue Two: The narrative reason for separation “Fraudelent entry in to military service: is to my belief too harsh. The reason given is because of my ankles, which according to the doctors statement were pre-existing and that I did not wish it known. It does state that I disclose this type of injury would disqualify me from service. My enlistment was to the best of my knowledge done with no fraud in mind.

I respectfully request that it be changed to “medical reasons” and my character to “Honorable”.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr from Cameron County Veterans Service Office, V_ W_, VSO Staff, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20010712 - 20010730      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 20010731             Date of Discharge: 20010917

 Length of Service (years, months, days):

 Active: 00 0 1 17
         Inactive: None

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

Age at Entry: 24

Years Contracted: 4

Education Level: 12                                 AFQT: 31

 Highest Rank: Pvt                                   MOS: 9900
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NA*                  Conduct: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): None
*Not A pplicable


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 :

010801 :  Medical Entry: Branch Medical Clinic, M arine Corps Recruit Depot, San Diego, CA , Recruit Screener Exam (Ankle), HM1(FMF) R_ J. C_, USN : Eversion injury to right & left ankle while training . C omplains of swelling & pain . N o other injuries noted . W as able to bear weight after injury.
         Previous History of Injury: Twisted before boot camp . Sharp pain both deltoid ligaments. Duration of symptoms: 2 weeks.
 A: Right & Left ankle sprain, mild
P: I ce B ID /compression / elevation
 Motrin 200mg TID with Food or Milk
 Educat ed on condition & S ymptoms / s igns of c oncern
 Discussed stretching & rehab
 Light Duty 2 days
Not dated:       Sick Call Slip, Branch Medical Clinic, Marine Corps Recruit Depot, San Diego, CA, (caregiver name illegible) : Ankle Pain: needs SF 88/93 & any waivers. Can not ELS without it.
Not dated :       Sick Call S lip , Branch Medical Clinic, Marine Corps Recruit Depot, San Diego, CA, CDR L_ L_, Jr., M S C, USN, Senior Staff Podiatrist : Ankle Pain Limited Duty: Patient (Applicant) may continue in training/work with his unit. During this disability patient should not participate in: sit-ups, running, obstacle course, drill manual of arms/facing movement/marching, hiking/forced marching, lifting or carrying over 15 lbs., snapping in/firing, rope climbing, prolonged standing/mess duty on service line/watch standing. F/U
          Pending ELS.
010904:  Medical Entry: Podiatric Medicine, Branch Medical Clinic, Marine Corps Recruit Depot San Diego, CA , CDR L_ L_, Jr., MSC, USN, Senior Staff Podiatrist : 24 year old male with complaints of pain to ankle.
         1. Duration of symptoms: history of 10 yrs
          3. Activity when injured or at symptom onset: Cont sprain of ankle.
         O: TTP: mild / moderate Bil ankle. Edema: + mild . Effusion: negative. Erythema: negative. Cellulitis: negative. Ecchymoses, negative. Gross NVS intact Bil. Derm : WNL . Muscle Strength: diminished B il. Ankle ROM: full B il. Biomechanica l : rectus
          DX: Hyper laxity
         MEDS: Motrin 800 mg I PO TID (#30. Ref 0)
         Duty Status: Limited Duty x 2 days. Transit for Separation
          Disposition: EPTE Separation
010904:  Medical Entry: Branch Medical Clinic, Marine Corps Recruit Depot , San Diego, CA , CDR L_ L_, Jr., MSC, USN, Senior Staff Podiatrist : C hief Complaint: Multiple Ankle sprains, EPTE .
Verification Process: Clinical examination, past Medical history
Diagnosis: Hyper laxity both Ankle, EPTE .
Was this condition documented on the SNM (Applicant) SF-88 / SF93: No.
Was an official wavier granted for this condition: No.
Dispos i tion: Referred for administrative entry level separation . Member (Applicant) does not meet the minimum standards for enlistment as set forth in MANMED section III, and MILSPERSMAN 362080 at the time of entry into training. Member (Applicant) has not incurred injury and or has not aggravated pre-existing defects by active military service. Member (Applicant) ’s present condition is considered “not physically qualified in accordance with the physical standards for enlistment as opposed to physical unfitness by reason of disability, as defined in appendix (A) of SECNAVINST.18504C (Disability Evaluation Manual). SNM (Applicant) ’s condition is unlikely to change if retained.
010905:  Medical Entry: Branch Medical Clinic, Marine Corps Recruit Depot , San Diego, CA: SNM (Applicant) found quali f ied for active duty on 010712 based on enlistment SF-88 dated 010712 and P-2 (SF-600) dated 010905.
THIS PHYSICAL QUALIFICATION VALIDATES SNM (Applicant) FOR SEPARATION: Applicant do(es) not meet the minimu m standar d s for enlistment as set forth in ARMY REGULATIONS 40-501, the MI L ITARY PERSONNEL MANUAL ARTICLE 3620280 and in the MANUAL OF THE MEDICAL DEPARTMENT, Chapter 15, Section III (Physical Standards), and did not meet those standards at the time of entry into training. Present condition is “not physically qualified” in accordance with the physical standards for enlistment as oppos ed to physical unfitness by reason of physical disability as defined in appendix (a) of SECNAVINST 1850.4C (DISABILITY EVALUATION MANUAL).
 Applicant examined during the past 90 days and considered physically qualified for separation from active duty. No effects have been noted which would disqualify Applicant from the performance of duties (outside of the military), or entitle Applicant to di sa bility .

010917:  DD Form 214: Applicant discharged this date by reason of fraudulent entry into the military service with an uncharacterized character of 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 20010917 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).
In the Applicant’s issue that the narrative reason for separation is “too harsh, ” the Board found that competent medical authority diagnosed the Applicant as “not physically qualified” for enlistment with a condition that was not documented on the Applicant’s pre-enlistment medical records nor officially waived prior to entry onto active duty. 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 issue. There is no evidence in the record, nor has the Applicant produced any evidence, to indicate that the determination that the Applicant was “not physically qualified” was inaccurate, or that the discharge was improper. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief is not warranted.

For the edification of the Applicant, the NDRB does not have the authority to change a narrative reason for separation to one for a physical disability or “medical reasons” as requested. Only the Board for Correction of Naval Records can grant this type of narrative reason change. The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

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. 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 2 months 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.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, credible evidence of a substance free lifestyle 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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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