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USMC | DRB | 2006_Marine | MD0601222

Original file (MD0601222.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-01222

Current Discharge and Applicant’s Request:

Application Received:                               20 060908
Characterization of Service:
         Basis for Discharge :                       FRAUDUL E NT ENTRY IN TO MILITARY SERVICE
         Discharge Authority :                       MARCORSEPMAN 6204.3
         Duty Assignment/ Command at Discharge:    3RDRTBN RTR MCRD SAN DIEGO CA

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
Representation:

Applicant’s Issues :
1.       Reenlistment Opportunity
2.       Change reenlistment code
3 . Change Applicant’s reason for separation
Decision:

By a vote of 5 -0 the Discharge Characterization shall remain Uncharacterized
By a vote of 5-0 the Narrative Reason shall be changed to Erroneous Enlistment .

Date of Decision:                                            20070816
Location of Board:                                  Washington D.C.
Complete Service Record:                                    Yes
Complete Medical Record:                           Yes
Complete Discharge Package:                        Yes
Regarding propriety, the Board found the discharge:      Proper
Regarding equity, the Board found the discharge:         E QUITABLE

Issue 1 &2 : The Board determined that th ese Issue s are n ot issue s which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to page one of the Addendum regarding this issue.

Issue 3 : (Equity) The Board determined the Applicant was involuntarily discharged based on a medical prognosis that the Applicant’s condition would unlikely change if retained. The Board determined the Applicant’s separation remain as “Entry Level Separation” based on the Applicant’s involuntary separation within the first 180 days of active military service with out substantiation of an injury sustained during training . The Board was unable to confirm the underlying cause of the medical prognosis based on documentation . However, while the Applicant’s was serving his contract , the Applicant indicated his medical condition may have been related to an injury sustained prior to enlistment. N o history of a prior injury was identified during the enlistment process. The Board was unable to determine if t he Applicant’s made any deliberate attempt to omit or conceal historical medical issues that would affect the Applicant’s eligibility at the time of Enlistment . Therefore, the Board determined the Applicant’s separation is based on an Erroneous Enlistment.

The Applicant should be aware that, with respect to non-service-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.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               20041230 - 20050313
Active:

Period of Service Under Review:
Date of Enlistment:                                 20050314
Years Contracted :                                   ;
Date of Discharge:                                  20050711
Length of Service
         Active:                                     00 Yrs 0 3 Mths 28 D ys (does not exclude lost time)
Time Lost During This Period:
Education Level:
Age at this Enlistment:
AFQT:                                                 64
MOS:                                                  9900
Highest Rank:                                        P RIVATE

Awards and Decorations (as listed on the DD Form 214): NONE

Service Record Entries Related to Characterization of Service or Basis for Discharge

20041229:        Physical standard waiver approved.

Medical Record Entries Related to Characterization of Service or Basis for Discharge

20050629 :        BMC MCRD SAN DIEGOL CA.
         Diagnosis: Chronic low back pain in an extremely demotivated recruit, + history of back injury EPTE. Failure of conservative management, very low likelihood that we can get this recruit back into training.
         Recommendation: Entry Level Separation.

20050701:        Battalion Drop Counseling: Entry Level Separation from the USMC.

20050705:        Counseling: Chronic Lower Back Pain .

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       20050705
Basis for Discharge:

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 20050705
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        SEPARATION ( 20050701 )
SJA review (date):
Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS RECRUIT DEPOT, SAN DIEGO CA 92140-5000 ( 20050707 )
Narrative Reason directed:                                  DEFECTIVE ENLISTMENT DUE TO FRAUDUL E NT ENTRY
Characterization directed:
Date Applicant Discharged:                         20050711

Additional Documents Considered By Board

_____________Document Type______________________#Pages

Related to Period of Service Under Review:
         Service/Medical Record:                            14
         Other Period of Service                            0
Related to Post-Service Period:
         Community Service:                                  0
         Employment:                                          0
         Health/Medical:                                     0
Character Statements:                                0
Family Statements:                                   1
Criminal Records Checks:                                    0
Additional Statements from Applicant:             0
Other Documentation:                                0

Pertinent Regulation/Law

A . The Marine Corps Separation and Retirement Manual, MCO P1900.16F Ch 1 ), effective
0 1 September 2 00 1 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, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

Complaint Procedures : 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: 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. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may 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.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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USMC | DRB | 2006_Marine | MD0601222

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