Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700358

Original file (MD0700358.rtf) Auto-classification: Denied

ex-, USMC
MD07-00358

Current Discharge and Applicant’s Request

Application Received: 20070124 Characterization Received:
Narrative Reason: Fraudulent entry into the Marine Corps (administrative discharge board required by waived). Authority: MARCORSEPMAN 6204.3

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:      1. Reenlistment opportunities.
2. Did not withhold disqualifying information from the recruiter.
                           3 . Post service.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FRAUDULENT ENTRY INTO MILITARY SERVICE.

Date: 20 071018                                     Location: Washington D.C.

Discussion

Issue 1: The Board determined that this i ssue is n ot an i ssue 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 the Addendum .

Issue (2). 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 service member’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. A n other than honorable discharge may be issued when the reason for separation in based upon behavior that constitutes a significant departure from the conduct expected of a Marine. The Applicant's service record did not contain any unusual circumstances during his less than 6 months in the military to warrant a change of discharge to honorable or sufficient adverse information to warrant an other than honorable discharge.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under ho norable conditions) discharge.

Issue 3 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Board determined that th e documentation provided by the Applicant did not have effect on the decision to change the characterization or narrative reason for discharge

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

Prior Service:
Inactive: USMCR (DEP)    20000316 - 20000327
Period of Service Under Review:
Date of Enlistment: 20000328               Years Contracted : ; Extension: Date of Discharge: 20001003
Length of Service: 00 Yrs 06 Mths 06 D ys         Lost Time: Days UA: Days Confined:
Education Level:         Age at Enlistment:       AFQT: 74          MOS: 9971 Highest Rank:
Proficiency/Conduct marks (# of occasions):      3.8 (2 )/3.8 (2)
Awards and Decorations (per DD 214): RIFLE SHARPSHOOTER BADGE

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

20000825:        MARCORSEPMAN 6105 counseling for fraudulent enlistment.

20000829:        Applicant’s voluntary statement acknowledging prior medical problems (blackouts).

Discharge Process

Date Notified:   20000901
Basis for Discharge:     DUE TO FRAUDULENT ENLISTMENT
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 20000 901
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 2000090 1 )
SJA review (date):       ( 20000926 )
Separation Authority (date):     BASE COMMANDER, MARINE CORPS BASE, CAMP PENDLETON ( 20000929 )
Basis for discharge directed:   FRAUDULENT ENLISTMENT
Characterization directed:
Date Applicant Discharged:       20001003

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:     Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education:
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, MCO P1900.16E), effective
18 Aug 95 until 31 Aug 2001, 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 to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . 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 | 2007_Marine | MD0700358

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