Search Decisions

Decision Text

USMC | DRB | 2014_Marine | MD1400499
Original file (MD1400499.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140106
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)       20030923 - 20031013     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031014     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20031126      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 62
MOS: 9900
Proficiency/Conduct M arks (# of occasions): NA / NA      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.       The Applicant contends his prior service injury was overlooked during the hurried medical in-processing.
2.       The Applicant contends his disqualifying injury occurred during recruit training and was not the result of a prior service diagnosis of Osgood - S ch latter’s disease.
3.       The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

 Date: 20 1 4 0717   Location: Washington D.C . R epresentation : Operation american patriot

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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant twisted his knee during training and competent medical authorities determined the underlying cause of the injury was related to his diagnosis of Osgood - S ch latter’s disease when he was 12 years old. Based on the determination that the Applicant had fraudulently enlisted, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his prior service injury was overlooked during the hurried medical in-processing. He also contends his disqualifying injury occurred during recruit training and was not the result of a prior service diagnosis of Osgood-Schlatter’s disease. 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 he was misled or hurried through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show misrepresentations or rushed processing in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own fraudulent entry .

The Applicant’s DD Form 2807-1 filled out upon enlistment was found to be negative for a mention of Osgood- S ch latter’s disease but was found to mention other disqualifying circumstances that could be waivered , such as a 30 - time prior service marijuana use , civil law violations , and flat feet . Upon the Applicant’s reported injury during training , his condition was verified by a review of health records and radiographs demonstrating bone cortex disruption over tibial tuberosity of his right knee. The Applicant demonstrated chronic right knee pain with minimal exertion. He was determined to be not physically qualified in accordance with the physical standards for enlistment by qualified medical practitioners , and his condition was determined to unlikely change if retained. The record indicates the Applicant’s condition was first diagnosed as Osgood - S ch latters’s disease when he was 12 years old. The NDRB found the documentation and statements provided for review do not refute the presumption that the Applicant deliberately misrepresented his medical condition during the enlistment process, including the omission or concealment of facts , which, if known at the time , would have reasonably been expected to preclude, postpone, or otherwise affect the Marine’s eligibility for enlistment or induction. In addition, the documentation available for review did not refute the presumption that his diagnosis of Osgoo d- S ch latter’s disease still existed during the time of his enlistment. No other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

 : (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of an upgrade. The NDRB considers 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. The Applicant provided a personal statement, documents written in Hebrew documenting service as an Israeli Marine , and three character references from fellow members of the I sraeli Defense Force . While the NDRB commends the Applicant on his strong post-service conduct, it does not change the fact that he fraudulently enlisted in the U.S. Marine Corps. Additionally, he was assigned an Uncharacterized characterization of service because he served less than 180 days of active service. His post-service conduct does not warrant a change, because the Uncharacterized was properly issued. Relief denied.

 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 awarded characterization of service shall and the narrative reason for separation shall remain . 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

Similar Decisions

  • USMC | DRB | 2005_Marine | MD0500954

    Original file (MD0500954.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D. I thought it would get...

  • USMC | DRB | 2006_Marine | MD0601222

    Original file (MD0601222.rtf) Auto-classification: Denied

    Issue 3: (Equity) The Board determined the Applicant was involuntarily discharged based on a medical prognosis that the Applicant’s condition would unlikely change if retained. SEPARATION (20050701) SJA review (date): Separation Authority (date): COMMANDING GENERAL, MARINE CORPS RECRUIT DEPOT, SAN DIEGO CA 92140-5000 (20050707)Narrative Reason directed: DEFECTIVE ENLISTMENT DUE TO FRAUDULENT ENTRYCharacterization directed: Date Applicant Discharged: 20050711 Additional Documents Considered...

  • USMC | DRB | 2014_Marine | MD1401306

    Original file (MD1401306.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant contends that his characterization should be changed to Honorable for reasons that he was treated unfairly by his command.The NDRB was unable to review the Applicant’s complete discharge package, as it was not included in his official service record. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal...

  • NAVY | DRB | 2009_Navy | ND0900907

    Original file (ND0900907.rtf) Auto-classification: Denied

    Based on his time in service (20 days), lack of unusual circumstances in conduct and performance, and reason for separation, the Board determined the awarded characterization of service was appropriate.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall (ENTRY LEVEL SEPARATION) and the narrative reason for...

  • USMC | DRB | 2009_Marine | MD0902467

    Original file (MD0902467.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Decisional issues: Applicant seeks change in narrative reason for discharge and characterization of separation due to both propriety (wrong narrative reason for his circumstances) and (equity) in that he rates an Honorable characterization due to serving without misconduct. ” Additional Reviews : After a document review has been conducted, former members are eligible for a...

  • NAVY | DRB | 2013_Navy | ND1300481

    Original file (ND1300481.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to:MEDICAL Summary of Service Prior Service: Inactive:USNR (DEP)20090305 - 20091213Active: Period of Service Under Review: Date of Current Enlistment: 20091214Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20100204Highest Rank/Rate:SRLength of Service:Years Months21 DaysEducation Level:AFQT: 35EvaluationMarks:Performance:NOBBehavior:NOBOTA: NOBAwards and Decorations (per DD 214):NONEPeriods of...

  • NAVY | DRB | 2010_Navy | ND1000538

    Original file (ND1000538.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20051013 - 20060619Active: Period of Service Under Review: Date of Current Enlistment: 20060620Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:20060922Highest Rank/Rate: SALength of Service: Years Months03 DaysEducation Level:AFQT: 57EvaluationMarks:Performance:NONE Behavior:NONEOTA: NONEAwards and Decorations (per DD 214):Periods of...

  • NAVY | DRB | 2009_Navy | ND0901263

    Original file (ND0901263.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY. ” 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...

  • NAVY | DRB | 2009_Navy | ND0901980

    Original file (ND0901980.rtf) Auto-classification: Denied

    Decision Date: 20100810Location: Washington D.C.Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall FRAUDULENT ENTRY.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. With respect to non-service-related administrative matters (i.e., Department of Veterans Affairs benefits or...

  • USMC | DRB | 2003_Marine | MD03-01143

    Original file (MD03-01143.rtf) Auto-classification: Denied

    “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized Discharge to that of a General Under Honorable Conditions, with removal of the narrative reason for separation of Fraudulent Entry Into Military Service to that of...