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USMC | DRB | 2009_Marine | MD0902639
Original file (MD0902639.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090924
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)       20080522 - 20080527     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080528     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080807      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 32
MOS: 8011
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 . Applicant seeks an upgrade in his characterization of service to Honorable and a change in narrative reason for separation and corresponding separation code from Fraudulent Entry i nto Military Service to either physical disability by medical board or any other medical discharge separation code. Applicant contends that he identified occasions of pain while working as a stock clerk , but was unaware , and had not been d iagnosed , with scoliosis prior to entry in the armed services .

Decision

Date: 20 10 1022            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall ERRONEOUS ENTRY, OTHER.

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 identif ied one decisional issue concerning the propriety of his discharge to the Board. T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered the military service at the age of 21 with a waiver for use of illegal drugs (marijuana - 25 times). After completing military entrance processing, he shipped to the recruit depot and began training. The Applicant was dropped from training and was transferred to the medical rehabilitation platoon on or about training day-17 for treatment of non-resolving back pain. Due to continued non -resolving pain, the Applicant received a series of X- rays that revealed a pre-existing condition of scoliosis, determined by X-ray to be greater than 20 degrees. The M edical D ispositions O fficer determined that the diagnosis of scoliosis was a disqualifying physical condition for entry into military service - that it existed prior to entry in the military service - and further recommend ed the Applicant be separat ed due to “chronic back pain – scoliosis, existed prior to entry.”
The A pplicant was processed for an entry - level separation for Fraudulent En listment. The characterization of his service at discharge was Uncharacterized. The A pplicant was determined to have fraudulent ly ent e r ed into the military due to his failure to reveal lower back pain at the Military Entrance Processing Station during the medical history review. The separation process did include the identification of allegations of recruiter misconduct.

The Applicant provided additional documentation for the NDRB’s consideration, which included the Applicant’s personal statement to the Board and copies of his recruit training evaluation records and separation process paperwork .

: (Decisional) ( ) PARTIAL . The Applicant seeks a change in the narrative reason for separation from Fraudulent Entry i nto Military Service to either physical disability by medical board , or any other appropriate medical discharge . The Applicant contends that he identified occasions of pain while working as a stock clerk but was unaware of and was not d iagnosed with any condition or injury prior to entry ; he was advised by the recruiter that if it was not an actual injury, not to mention it.
T he NDRB does not have the authority to change a narrative reason for separation to one of a physical disability as requested. Only the Board for Correction of Naval Records can grant this type of narrative reason change. The Applicant can petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.

S coliosis of greater than 20 degrees is a pre-existing condition , not service - caused or service - aggravated , which is disqualifying for military service . Had the Military En t rance P rocessing S tation known about it, or identified it during the entrance physical, the Applicant would not have been inducted in t he military service. The NDRB found that the Applicant’s contention of not knowing about his diagnosis was not without merit and that he could not have been reasonably expected to know that the work-related occasional lower back pain as a stock clerk was the symptom of an underlying condition. The Board determined that r elief was warranted; the proper narrative reason for separation should be Defective Enlistment - ERRONEOUS ENTRY, OTHER ( HFC1 ) .

By service regulation, members notified of intended recommendation for separation within the first 180 days of their enlistment will usually receive an Entry Level Separation and a corresponding characterization of service as Uncharacterized. Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit an H onorable characterization, an U ncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances or meritorious conditions during his 2 months in the military to warrant a change of discharge characterization of service. With respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an U ncharacterized separation is considered the equivalent of an H onorable or G eneral ( U nder H onorable C onditions) discharge. Having reviewed the facts of the discharge, the NDRB determined that the Applicant’s characterization of service upon separation as Uncharacterized was appropriate and equitable; a change would be inappropriate.

 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 Therefore, the narrative reason for separation shall change to ERRONEOUS ENTRY, OTHER (HFC1) but the awarded characterization of service was proper and equitable as issued and shall .

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 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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