Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901653

Original file (MD0901653.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090527

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)       NONE      Active:

Period of Service Under Review:
Date of Current Enlistment: 20070127     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080723      H ighest Rank:
Length of Service:
         Inactive:        Year(s) Month(s) 08 D ay(s)
         Active: Year(s) Month(s) 19 D ay(s)
Education Level:        AFQT: 50
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:    SCM:    SPCM: CC: Retention Warning Counseling:

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 :

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 .

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

Applicant’s Issues

1. E mployment .
2 . Record of service .
Decision

Date: 20 10 318 Location: Washington D.C . R epresentation :

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

Administrative note

The NDRB noted two administrative error s on the letter from the officer in charge of the Peacetime Wartime Support Team dated 23 August 2008, with regards to the character of service. Although this letter stated the Applicant’s characterization of service was Other Than Honorable Conditions, he actually was awarded a General (Under Honorable Conditions) discharge per the letter dated 23 July 2008 from the commanding general (CG), Headquarters, Fourth Marine Division.

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service reflected no misconduct that resulted in nonjudicial punishme nt (NJP) or court-martial. The 2 ^nd Battalion, 24 ^th Marines surgeon stated in his letter of 9 January 2008, that the A pplicant was diagnosed by a civilian cardiologist with moderate tricuspid regurgitation (leaking heart valve) with associated pulmonary hypertension (increased blood pressure in the lungs). The sur geon also noted the Applicant was diagnosed with a ttention deficit h yperactivity disorder (ADHD) as a child and attention d eficit d isorder (ADD ) as an adult, and had used the medication , Concerta ®, for treatment of ADD. The Applicant failed to disclose this information at the time of enlistment, and flatly admitted that he had lied in order to joint the Marine Corps. Based on the Applicant’s failure to disclose his history of ADHD, ADD, heart murmur, and medication prior to entry into the Marine Corps , command administratively processed for separation. When notified of administrative separation processing, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a administrative separation board .

: (Nondecisional) The Applicant is requesting a change of discharge for potential employment. 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.

: (Decisional) ( ) . The Applicant contends due to his record of service he should have been given a G eneral or an H onorable discharge, but that a General discharge is inappropriate because he performed honestly and faithfully with no negative aspects when activated for training and as confirmed by his two DD Form 214s with an Honorable classification; and due to no fault of his own is requesting an Honorable discharge. As noted above, the NDRB determined two administrative error s had occurred and the Applicant did receive a G eneral ( Under Honorable C onditions) with a narrative reason as F raudulent E ntry into M ilitary S ervice . The letter dated 23 July 2008 from the commanding general (CG), Headquarters, Fourth Marine Division, listed the authority for discharge as the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), paragraph 6204.3 (Fraudulent Entry into the Marine Corps). The NDRB found no evidence of a waiver for his fraudulent enlistment or that his service was so meritorious that any characterization other than Honorable would clearly be inappropriate. The Applicant did state that he did not mention his heart condition in his enrollment application. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB , by majority vote, determined the awarded characterization of service was warranted and that Fraudulent Entry into the Marine Corps is the appropriate narrative reason for separation.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found T herefore, the awarded characterization of service shall and the narrative reason for separation shall remain FRAUDULENT ENTRY INTO MILITARY SERVICE .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.

Employment/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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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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USMC | DRB | 2009_Marine | MD0901653

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