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USMC | DRB | 2013_Marine | MD1301100
Original file (MD1301100.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130416
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: REMOVE REASON “FRAUDULENT ENLISTMENT ”

Summary of Service
Prior Service:
Inactive:         USMCR (DEP)       20090921 - 20100718     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20100719     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120323      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 63
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:                       SCM:                       SPCM:             CC:

Retention Warning Counseling :

- 20120206 :       For being diagnosed with an adjustment disorder and fraudulent enlistment for not disclosing a previous history of being treated for Attention Deficit Hyperactivity Disorder (ADHD) from age 6 to 11 , prior to service entry.

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.       The Applicant seeks to have all of his records pertaining to his discharge sent to him.
2.       The Applicant contends he told his recruiter about his Attention Deficit / Hyperactivity Disorder (ADHD) .
3.       NDRB Issue: Condition Not a Disability is a more appropriate Narrative Reason for Separation, and his discharge was inequitable.
Decision

Date: 20140130            Location: Washington D.C .         R epresentation :

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 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 included 6105 counseling warning . Based on the Applicant ’s failure to disclose his pre-service treatment for ADHD and his Condition Not a Disability as evidenced by his diagnosis of Adjustment Disorder , command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement . The Applicant was notified of separation proceedings for Fraudulent Entry into Military Service and Condition Not a Disability .

: (Nondecisional) The Applicant seeks to have all of his records pertaining to his discharge sent to him. The NDRB is not the agency of record holding any of the Applicant’s service or medical records, and, as such, is not authorized to release copies of service or medical records or other documents that are under the cognizance of another government department, office, or activity. The Applicant should refer to http://www.archives.gov and look for Military Service Records under the Most Requested Section of the website to order his service and medical records.

: (Decisional) ( ) . The Applicant contends he told his recruiter about his ADHD and provided a letter from his parents attesting to this . The record shows the Applicant denied that he had taken medication, drugs, or any substance to improve his attention, behavior, or physical performance on his DD Form 2807- 2 during the enlistment process . 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. Relief denied.

: (Decisional) ( NDRB Issue) ( ) . Based on the Applicant’s diagnosis of an Adjustment Disorder after 18 months of service, the Applicant’s command determined he was no longer fit to serve and notified him of administrative separation proceedings for Fraudulent Enlistment and Condition Not a Disability. Based on his personal interview with the Applicant and a review of the record, the Commanding Officer, 3 rd Battalion, 6 th Marine Regiment recommend ed that the Applicant receive an Honorable characterization of service . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined his Adjustment Disorder diagnosis was the impetus behind his discharge, and it would be more appropriate to list the Narrative Reason for Separation as Condition Not a Disability. Per the Marine Corps Separation and Retirement Manual, characterization of service for discharge due to a Condition Not a Disability should be Honorable unless a General is warranted. During the Applicant’s 20 months of service, he had no misconduct or other significant negative aspects of service to warrant a General discharge. Therefore, the NDRB voted to upgrade the characterization of service to Honorable and change the Narrative Reason for Separation to Condition Not a Disability. Relief granted.

 Summary: After a careful review of the official service records, and the facts and circumstances unique to this case, the Board found the discharge was proper but not equitable. The refore, the NDRB voted to upgrade the characterization of service to and change the N arrative R eason for S eparation to . 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 for additional information.


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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