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USMC | DRB | 2010_Marine | MD1001384
Original file (MD1001384.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100401
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:         None               Active:   (R) 199508XX – 19960710 HON
                                    USAF (R) 199808 31 – 1999011 2

Period of Service Under Review:
Date of Current Enlistment: 19990128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990310      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 18 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 25 D a y ( s )
 Education Level:        AFQT: 99
MOS: 9900
Proficiency/Conduct M arks (# of occasions): N/A / N/A

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 P1900.16E), effective 18 August1995 until 31 August 2001, 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

 Decisional issues : The Applicant contends that he did not knowingly fraudulently enlist in the USMCR ; that he was upfront with the recruiter regarding his situation, and that his discharge narrative reason should be changed.

Decision

 Date: 20 1 1 0825         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 for the NDRB’s consideration . Additionally, the NDRB complete d a thorough review of the circumstances that led to the discharge , and the discharge process , to ensure the discharge action met the pertinent standards of both equity and propriety.

The Applicant entered the military service at the age of 21 with out any waivers to enlistment or induction standards after withdrawing from the Air Force Reserve Officer Training Corps (AFROTC) at the Virginia Military Institute (VMI). After completing military entrance processing, he shipped to the recruit depot and began training. The Applicant was dropped from training on training day- 5 for discharge due to being contractually committed to the United States Air Force to enlist . The A pplicant was processed for an entry-level separation for Fraudulent Enlistment. The characterization of his service at discharge was “Uncharacterized.” The A pplicant was determined to have fraudulently entered into the military due to his failure to reveal his contractual obligation to the Air Force during his enlistment process.

The Applicant provided additional documentation for the NDRB’s consideration, which included the Applicant’s personal statement to the Board and a cop y of his DD Form 785 (Record of Disenrollment from Officer Candidate-Type training). Additionally, the NDRB received confirmation of the Applicant’s history of active duty service with the United States Air Force , verifying the Applicant is on active duty, serving honorably, and is not pending any disciplinary actions.

(Decisional Issue ) ( ) . The Applicant seeks a change in the narrative reason for separation from Fraudulent Entry into Military Service to an unspecified change reflecting the error was not his or to be deleted in total.

(Propriety) The Applicant was notified of his pending separation with a basis of defective enlistment; he was further recommended for discharge with a specific narrative reason of Fraudulent Entry into Mi litary Service. The Applicant’s enlistment documentation clearly shows that he advised the recruiter of his AFROTC service. T he recruiting command contacted the Headquarters AFROTC who provided a disenrollment record in the case of the Applicant stating th at he was discharged from his AFROTC and Air Force commitment s . After reviewing the Applicant’s complete service record and enlistment contract, the NDRB determined that the Applicant did not fraudulently enlist; he was forthright in identifying his situation with the Air Force to the best of his knowledge. The NDRB further determined that the recruiting office failed to do proper due diligence in verifying the Applicant’s service obligations. In the end, the discharge resulted due to confusion in service obligation due to two different periods of AFROTC service – each with different obligations. Complete information was not verified before enlisting the Applicant. The Board determined that r elief was warranted; the proper narrative reason for separation is Defective Enlistment - ERRONEOUS ENTRY, OTHER. The Marine was not aware of the existing obligation and was advised he was qualified to enlist in the Marine C orps by the recruiting office.




(Equity) 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 honorable characterization, an U ncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Ap plicant’ s service record did not contain any unusual circumstances or meritorious conditions during his one month of service in the Marine Corps 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.
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 , however, 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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