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USMC | DRB | 2006_Marine | MD0600700
Original file (MD0600700.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. MD06-00700

Applicant’s Request
The application for discharge review was received on 20060426 . The Applicant requests the Narrative Reason for Separation be changed to “ Convenience of the Government .” The Applicant requests a documentary record discharge review. The Applicant designated Private Representation as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070209 . 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 3 - 2 that 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 - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Propriety: Basis for discharge did not exist.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 214 (Member 1)
 Excerpts from Service Record (13 pgs)
 Applicant’s m edical record from Bixby Medical Center (6 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (DEP)    20050531 - 20050620       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20050621              Date of Discharge: 20050809

Length of Service (years, months, days):

 Active: 00 0 1 19
         Inactive: None

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

Age at Entry: 22

Years Contracted: 5

Education Level: 1 4                                  AFQT: 63

Highest Rank: P vt                                    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 :

050526:  DD Form 2807.1 Report of Medical History at Detroit MEPS : In response to question 15c, “Have you ever had or do you now have a head injury, memory loss or amnesia,” the Applicant checked the “No” block. In response to question 20, “Have you ever been treated in an Emergency Room?” the Applicant checked the “No” block. In response to question 21, “Have you ever been a patient in any type of hospital?” the Applicant checked the “Yes” block and wrote, “Bixby Medical Center in 1999 had ACL reconstruction by G_.”

050531:  Chief, Bureau of Medicine and Surgery informs Commanding General, Marine Corps Recruiting Command, that Applicant does not meet established physical standards due to history of right knee ligament repair and chondromalacia; retained orthopedic hardware; history of asthma. Recommends waiver of physical standards.

 050531:  Commanding General, Marine Corps Recruiting Command, approves waiver of physical standards.
050624:  Applicant dropped to EHP for depressed skull fracture.

 050728:  Applicant given Article 31 warnings regarding self-incrimination, waives rights and provides handwritten v oluntary m edical s tatement . In response to question, “What medical problems do you have that were no t disclosed to the MEPS doctor?” Applicant responded, “ The undisclosed history is cognitive disorder secondary to old closed head injury.
050728:  Medical Dispositions Officer informed Recruit Liaison Officer that A pplicant ha d a physical condition which existed prior to enlistment. C ondition is disqualifying for active duty service … would have been disqualifying at MEPS had all the facts been known at the time of enlistment physical examination. U ndisclosed history is: Cognitive Disorder s econdary to o ld c losed h ead i njury. Applicant referred for review.

050728:  Recruit Liaison Officer informs Commanding Officer, Support Battalion, that Applicant will be processed for fraudulent enlistment due to preservice undisclosed history per Medical Dispositions Officer’s memo. Applicant mad e no allegations towards any recruiting members. Recommends transfer to Recruit Separation Platoon.

050801:  Applicant counseled on being dropped to R ecruit Separation Platoon as a fraudulent enlistment due to and undisclosed history of cognitive disorder secondary to old closed head injury. Applicant stated that he had previously had a skull fracture which he did not disclose to his recruiter.

050801 :  Applicant notified of intended recommendation for discharge by reason of fraudulent entry . The factual basis for this recommendation was fraudulent for pre-service undisclosed history of cognitive disorder secondary to old head injury .

050801 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights . Applicant underst ood this will be an Entry Level Separation.

050809 :  Commanding Officer directed the Applicant's discharge with an uncharacterized service by reason of fraudulent entry .

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050809 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).
In regard to the Applicant’s issue, the Board found credible evidence in the record that the Applicant suffered a pre-service head injury which he did not reveal during the recruiting process. The Applicant’s supporting documentation corroborates the existence of the injury, apparently suffered in a motor vehicle accident as a child. Competent medical authority at the Recruit Depot determined that the secondary e ffects of that injury disqualified the Applicant from meeting physical standards for enlistment. The Board did not believe that the record indicated that the Applicant knew of the secondary effects of his injury; however, b ecause he knew he had known, but denied during pre-service processing, that he had suffered a head injury and had been treated in an emergency room, the Applicant prevented proper assessment of his fitness for military service. The Board specifically weighed and deliberated whether or not the Applicant’s failure to disclose this information was deliberate or an oversight in light of his young age at the time of the injury. In the absence of evidence to the contrary, the Board found that narrative reason for discharge was not improper. Therefore, relief is 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 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 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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