Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700629
Original file (MD0700629.rtf) Auto-classification: Denied
ex-PFC, USMC
MD07-00629
Current Discharge and Applicant’s Request
Application Received: 20070405   Characterization Received:
Narrative Reason: FRAUDULENT ENTRY INTO MILITARY SERVICE Authority: MARCORSEPMAN 6204.3      

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Employment opportunities.
 2. Mislead by recruiters and came forward on my own to correct information.

Decision

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

Date: 20 0711 20    Location: Washington D.C.       Representation :

Discussion

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 (Equity). The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. There is credible evidence in the record that the Applicant committed a fraudulent enlistment. The Applicant does not deny this action . When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under honorable conditions) discharge is warranted when negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by one nonjudicial punishment for a violation of UCMJ Article 83, fraudulent enlistment. 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 support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. A n upgrade to honorable would be inappropriate.

Statements in the record from both the Applicant and his attorney infer that the Applicant had a prior history of use of anti-psychotic medications and treatments. The Board found that the documentation and statements provided for review do not refute the presumption that the Applicant deliberately misrepresented his medical condition during the enlistment process, including the omission of facts on his entrance physical which, if known at the time , would have reasonably been expected to preclude, postpone, or otherwise affect the Marine’s eligibility for enlistment or induction. No other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.

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) 20020524 - 20020820            
Period of Service Under Review:
 Date of Enlistment: 20020821     Years Contracted : 4 ; Extension:          Date of Discharge: 20030416      
Length of Service : 00 Yrs   07 Mths   16 D ys          Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 19     AFQT: 32          MOS: 9900      Highest Rank: PFC
Proficiency/Conduct marks (# of occasions):      4.1(2 ) / 3.9 ( 2 )
Awards and Decorations ( per DD 214): NDSM, RIFLE SHARPSHOOTER BADGE      

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

 20011011 :        Civilian Medical Record: Assessment of anxiety issues.
Diagnosis: Apparent adjustment disorder manifested be both depression and anxiety. Pharmacotherapy discussed.
Recommendation: Begin Zoloft. Reassess in four weeks.
20020118 :        Civilian Medical Record: Follow up for anxiety and insomnia issues.
Diagnosis: Anxiety improving.
Recommendation: Continue with Zoloft and start Trazodone for insomnia.
20020326 :        Civilian Medical Record: Follow up for anxiety and insomnia issues.
Diagnosis: Anxiety and insomnia accompanied by fatigue.
Recommendation: Discontinue Trazodone briefly. Consider discontinuing Zoloft.
20030116 :        Medical Record: Initial Mental Health evaluation. Presented self for anxiety and depression. Reports excessive worry, crying, emotional liability, lack of sleep, and racing thoughts.
Recommendation: Attend support groups until medical disposition finalized.

20030128:        Letter from A p plicant’s attorney

20030227 :        NJP -- Viol UCMJ Art icle 83.
         Awarded - FOP ($ 268 ) for ( 1 months); Restr for ( 14 days); Extra duties ( 14 days).

 20030228 :        MARCORSEPMAN 6105 counseling for violation of UCMJ Article 83, fraudulent enlistment . Being processed for administrative separation.

20030311:        Applicant’s voluntary statement.

Discharge Process

 Date Notified:   20030324      
Basis for Discharge:      DUE TO:
                 
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20030324
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20030326 )
SJA review (date):      
Separation Authority (date):     NOT FOUND IN RECORD
 Basis for discharge directed:  
Characterization directed:     
Date Applicant Discharged:       20030416      

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 P1900.16F), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 83.

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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0801653

    Original file (MD0801653.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found 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...

  • NAVY | DRB | 2009_Navy | ND0901980

    Original file (ND0901980.rtf) Auto-classification: Denied

    Decision Date: 20100810Location: Washington D.C.Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall FRAUDULENT ENTRY.Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. With respect to non-service-related administrative matters (i.e., Department of Veterans Affairs benefits or...

  • USMC | DRB | 2007_Marine | MD0700770

    Original file (MD0700770.rtf) Auto-classification: Denied

    Diagnosis: Recommendation:20060130: Medical Record: Reason for visit: Discharge physical. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.

  • USMC | DRB | 2008_Marine | MD0801689

    Original file (MD0801689.rtf) Auto-classification: Denied

    Sleepers Syndrome (not a disability) Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: VA Medical records ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. If the action includes either a punitive or administrative discharge for misconduct or for any basis...

  • USMC | DRB | 2008_Marine | MD0801156

    Original file (MD0801156.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: or UNCHARACTERIZEDNarrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP)19991208 - 19991228Active:19991229 - 20031003 Period of Service Under Review: Date of Enlistment: 20031004Period of Enlistment: Years MonthsDate of Discharge:20061123Length of Service: Years Month20 DaysEducation Level: Age at Enlistment:AFQT:38MOS: 0431Highest Rank: Fitness reports: Proficiency/Conduct marks (# of occasions):()/()Awards and...

  • NAVY | DRB | 2009_Navy | ND0902321

    Original file (ND0902321.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From/To Representation:From/ToCongress member:Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • USMC | DRB | 2014_Marine | MD1400145

    Original file (MD1400145.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: or uncharacterizedNarrative Reason change to:ENTRY LEVEL SEPARATION Summary of ServicePrior Service: Inactive:USMCR (DEP)20080702 - 20080810Active: Period of Service Under Review: Date of Current Enlistment: 20080811Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20090309Highest Rank:Length of Service: Year(s)Month(s)29 Day(s)Education Level: AFQT:64MOS: 8011Proficiency/Conduct Marks (# of occasions):N/A/N/AFitness...

  • USMC | DRB | 2012_Marine | MD1201824

    Original file (MD1201824.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to:COMPLETION OF REQUIRED ACTIVE SERVICE Summary of Service Prior Service: Inactive:USMCR (DEP)20100701 - 20110612Active: Period of Service Under Review: Date of Current Enlistment: 20110613Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20110727Highest Rank: Length of Service: Year(s)Month(s)15 Day(s)Education Level: AFQT:83MOS: 8000Proficiency/Conduct Marks (# of occasions):N/A/N/AFitness...

  • NAVY | DRB | 2011_Navy | ND1101914

    Original file (ND1101914.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • USMC | DRB | 2008_Marine | MD0800801

    Original file (MD0800801.rtf) Auto-classification: Denied

    He also admits seeing more than one psychiatrist concerning this condition and was diagnosed with depression, anxiety, and attention deficit disorder. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative...