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USMC | DRB | 2009_Marine | MD0900726
Original file (MD0900726.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090206
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20000629 - 20001024     Active:  

Period of Service Under Review:
Date of Enlistment: 20001025     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020412      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 50
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : SCM: SPCM: CC:

NJP:
- 20011214 :       Article 86 (UA – Missed c ompany formation )
         Article 91 (Failure to follow a lawful order ), 2 specifications :
-        Specification 1: D id not stay in duty room
-        Specification 2: F ailure to follow an order issued by an NCO
         Article 117 (Wrongfully use provoking speech and gestures)
          Awarded : Susp ended:

Retention Warning Counseling :

- 20020125 :       For fraudulent enlistment into the U. S. Marine Corps, specifically you withheld medical history from the MEPS and MCRD physicians and such medical history would have reasonably disqualified you from military service.

Types of Documents Submitted/reviewed
Related 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 Representat ion :   From Congress member :
Other Documentation :


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Medical and educational benefits.
2. Recruiter told him to exclude certain medical information.
3. Betrayal by the recruiter led to depression.

Decision


 Date : 20 0 9 0 507            Location: Washington D.C .         R epresentation :

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

 : ( ) . 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 , specifically the paragraph concerning and Employment and Educational Opportunities regarding these issues.

: ( ) . The Applicant contends his recruiter told him not to disclose any pre-s ervice medical issues to ensure enlistment and further contends there w as an investigation to prove the recruiter’s misconduct . 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. The Applicant’s record of service was marred by one 6105 counseling warning and one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA, a bsence without leave) ; Article 91 (Failure to follow a lawful order ), 2 specifications ; and Article 117 (Wrongfully use provoking speech and gestures). Violation of Articles 91 and 117 are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge based on the Applicant’s fraudulent entry into military service.

On 22 October 2001, a chaplain referred the Applicant for further evaluation because the Applicant voiced thoughts of suicide and homicide, and consequently, was diagnosed with a personality disorder and occupational problem. The Staff Psychologist stated the Applicant was unsuitable for continued military service, but still accountable for his actions. On 30 November 2001, a follow-up mental health evaluation was conducted and the Applicant was found to have continuing assaultive thoughts and his chain of command recommended he enroll in an anger management class. Subsequently, the Applicant became increasingly belligerent and consistently refused to act respectfully toward noncommissioned officers in his chain-of-command. After his NJP in mid-December 2001, the Applicant’ s commanding officer recommended to the Commanding General, 1 st Marine Division, to administratively separate the Applicant “by reason of defective enlistment and induction due to fraudulent entry into the Marine Corps. ” In response to his commanding officer, the Applicant provided a written statement to the Commanding General, 1 st MarDiv, regarding his fraudulent enlistment . T he Applicant admitted to the following conditions, injuries, and incidents occurr ing prior to his entering military service: (1) He had suicidal ideations; (2) He was diagnosed at age 9 with attention-deficit hyperactivity disorder (ADHD) and was treated with Ritalin; (3) He had been admitted into a psychiatric hospital for three months for troubled children; (4) He had dislocated his shoulder at age 16 ; (5) He had burnt his corneas and scorched his retinas while welding without a mask and, consequently, was blind for three days and had permanently damaged his night vision ; (6) He had a weak left knee ; (7) He was incarcerated for a month after an assault charge ; (8) He was expelled from three schools for fighting and other misconduct; and (9) He had tortured and kill ed animals . The Applicant contends he told his recruiter about these pre-service conditions, injuries, and incidents but was told not to disclose them. The NDRB found no evidence in the record indicat ing the Applicant’s recruiter told him to withhold any of this information nor were results of an


investigation about the recruiter telling new recruits not to disclose i nformation which may affect their enlistment found. T he Applicant did not provide any additional information in support of his claim other than his statement.

In the Commanding Officer’s, 2d Battalion, 7 th Marines, letter of 08 February 2002, it states, “Although, [the Applicant] states that he had informed his recruiter of his previous problems, there is no evidence of such disclosure and medical documents at the time of his MEPS physical do not reflect any prior mental health problems. ” While the Applicant may believe his recruiter’s advice was the reason for his discharge , the record does not reflect he was not responsible for his actions or not accountable for his failure to disclose his medical past at any point within the in-processing phase of military service due to the recruiter advice . Since the Applicant submitted no evidence to support his contention, the NDRB determined the awarded discharge was appropriate and an upgrade is not warranted.

: ( ) . The Applicant contends his recruiter told him he was being slated for security forces, but became an infantry mortar man (MOS 0341) instead, and that led to the Applicant’s depression. The NDRB found on page 3 of the Applicant’s DD Form 1966 (Record of Military Processing – Armed Forces of the United States ), block 34, the Applicant’s specific option was “…Marine Corps Security Forces Option…” and the Applicant initialed that handwritten entry. For the edification of the Applicant, Marine Corps Security Force MOS’s are designated as category “B” billets—meaning you must obtain a primary MOS (category “A”) and meet the minimum requirements and prerequisites to qualify for a “B” category billet. By holdin g a 03 41 MOS, the Applicant met the requirement of having a primary MOS. However, i n the Commanding Officer’s, Weapons Company, letter of 14 January 2002, he states, “Aside from the documented mental problems, [the Applicant] has failed to meet even the minimum standards of a Marine mortar man since arriving at this command in June 2001.” The NDRB also notes the Applicant had several “psychosocial stressors” during this time period including his daughter’s medical problems and some marital strife. He also increased his alcohol use to help him relax. While the Applicant may have been depressed for not getting a Marine Corps Security Force MOS , he had other factors and stressor s at the time which made him ineligible for a Marine Corps Security Forces position. T h e NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and DD Form 293 submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 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 91 and Article 117.



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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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 or is referred to a court-martial fo r 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 other medical related reasons. ” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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