Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700360

Original file (MD0700360.rtf) Auto-classification: Denied

ex-LCPL, USMC
MD07-00360

Current Discharge and Applicant’s Request

Application Received: 20070125 Characterization Received:

Narrative Reason: FRAUDULENT ENTRY INTO MILITARY SERVICE Authority: MARCORSEPMAN 6402.3

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Wrongly discharged since I didn’t have PTSD prior to service.

Decision

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS) .
By a vote of 5-0 the Narrative Reason shall remain FRAUDULENT ENLISTMENT INTO MILITARY SERVICE.

Date: 20 0710 25                                     Location: Washington D.C.

Discussion

Issue ( 1 ). Fraudulent enlistment is proper when there has been a deliberate material misrepresentation, including the omission or concealment of facts which, if known at the time, would have reasonably been expected to preclude the Marine’s eligibility for enlistment. The Applicant contends that his problems were attributed to Post Traumatic Stress Disorder. 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. The NDRB found no medical diagnosis in the record to support the Applicant's claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. While he may feel that this was the underlying cause of his discharge, the record clearly reflects his willful withholding of disqualifying information upon enlistment which earned the proper fraudulent entry narrative reason for discharge. The NDRB believes that this best describes the narrative reason for discharge based upon the documentation of record and the Applicant’s own statements. A general (under honorable conditions) discharge is the second highest quality of characterization and is appropriate if the member’s service has been honest and faithful but certain negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. This characterization is most appropriate.

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)     20000927 - 20010715
Period of Service Under Review:
Date of Enlistment: 20010716      Years Contracted : ; Extension: Date of Discharge: 20040519
Length of Service : 2 Yrs 10 Mths 4 D ys    Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 18     AFQT: 71          MOS: 6173 Highest Rank: LCPL
Proficiency/Conduct marks (# of occasions):      4.4 ( 6 ) / 4.4 ( 6 )
Awards and Decorations ( per DD 214): RIFLE EXPERT BADGE, PISTOL SHARPSHOOTER BADGE, AIR MEDAL STRIKE FLIGHT, SEA SERVICE DEPLOYMENT RIBBON (3), NATIONAL DEFENSE SERVICE MEDAL, PRESIDENTIAL UNIT CITATION.
Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20020219:        U.S. Naval Hospital Okinawa, Mental Health Department. Discharge report for hospital stay 20020213-20020218. Reason for Admission: Suicidality and inability to contract for safety.
         Axis I: Adjustment Disorder with m ixed anxiety and depressed mood , Major depressive disorder, recurrent,
        EPTE, Specific phobia-situational type (Flying)
         Axis II: Personality disorder traits
         Axis III: No Diagnosis
         Axis IV: Pending deployment (now resolved), Routine Military Duties

2 0040223:        Memorandum from Staff Psychologist, Mental Health Department, USNH, Okinawa, Japan regarding mental health referral for the Applicant. Diagnosis
         Axis I: Adjustment Disorder with mixed anxious and depressed mood, Major depressive disorder, recurrent,
        EPTE Specific Phobia-situational type (Flying)
         Axis II: Deferred
         Axis III: Non-contributory
         Axis IV: Pending deployment to OIF, Routine Military Duties.

20040317:        Applicant’s statement admitting to being diagnosed with a pre-existing Major depressive Disorder and seeing doctors throughout middle and high school. Admits his withholding of this information from his recruiter.

20040325:        Command Investigation into allegations of fraudulent enlistment by Applicant. Investigating officer found that Applicant failed to reveal his history of depression when entering the Marine Corps and recommended that he be separated form the Marine Corps for Fraudulent Enlistment.

Discharge Process

Date Notified:   20040413
Basis for Discharge:      DUE TO
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                  200404 22
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 20040421 )
SJA review (date):       ( 20040429 )
Separation Authority (date):     CG, 1 ^ST MARINE AIRCRAFT WING ( 20040506 )
Basis for discharge directed:   DUE TO
Characterization directed:
Date Applicant Discharged:       20040519

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) VA disability rating

Pertinent Regulation/Law

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 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 | MD0700360

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