Petitioner was arrested by the Downey California Police by o262mlx9

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




                                      ex-Pvt, USMCR
                                   Docket No. MD02-00298

Applicant’s Request

The application for discharge review, received 020123, requested that the reason for the
discharge be changed. The applicant requested a documentary record discharge review. The
applicant designated civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829. After a
thorough review of the records, supporting documents, facts, and circumstances unique to this
case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s
service. The Board’s vote was three to two that the narrative reason of the discharge shall not
change. The discharge shall remain: UNCHARACTERIZED/ FRAUDULENT ENTRY INTO
MILITARY SERVICE, authority: MARCORSEPMAN Par. 6204.3.




The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and
Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent
Regulation/Law, Part IV - Information for the Applicant.
INDEX: A2900/A9401/A9317/A9241/A9221
Docket No. MD02-00298


                PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted


                                STATEMENT OF THE ISSUES
   The issue presented to this Board in this petition is whether recruiter misconduct or, at the

minimum, inept understanding of the recruiting regulations by the same recruiters, should leave a

recruit with a life long mark that subjects him to ridicule and lost opportunities. Petitioner's DD-

214 form, [Enclosure (1)], grossly mistates the characterization and service and the appropriate

RE Code. A presentation of the fact will leave this Board with an abiding belief that this

Petitioner was wronged and is entitled to relief.

   Petitioner was arrested by the Downey California Police Department on September 21, 1993

and charged by information on September 24, 1993 with violations of the California Health &

Safety Code sections 11359 and 11360 (A) and Penal Code section 182 (A). These allegations,

alleging conspiracy, possession with the intent to sell marijuana and sale of marijuana, were

eventually dismissed by the District Attorneys Office for the County of Los Angeles. The

Downey Police Department had made a gross mistake when they arrested Petitioner and the

charges were subsequently dismissed on April 11, 1994.

   At the point in time that the charges were dismissed, Petitioner had the right to request the

expungement of his records under Penal Code section 851.8 but he was uninformed about this
right.

   In the following year, Petitioner began investigating the opportunities available to him with

the Marine Corps Reserves. Through his hometown recruiting office in Huntington Beach,

California, Petitioner met Marine Corps recruiters F_ and B_. [Enclosure (2)] As is the routine

with all prospective recruits, Petitioner was asked about his criminal history. Petitioner honestly

represented his criminal history which was the sole arrest and exoneration described above. He

had no other confrontations with the law. After reviewing his history, these recruiters presented




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Petitioner with an enlistment contract on March 28, 1995 which Petitioner gladly signed.

[Enclosure (3)]

   After executing the contract but before he was to report to Basic Training, Petitioner was

informed that his criminal history was brought to the attention of the head of the recruiting office

after a background check. Petitioner met with the officer in charge of F_ and B_ and, after a

berating for having been arrested, Petitioner presented this officer with a certified copy of the

minute orders from that arrest and dismissal. [Enclosure (4)]. This apparently satisfied the

officer and Petitioner reported to Basic Training on December 26, 1995,
   Within several days after arriving at Basic Training, Petitioner was confronted by several

members of the staff and accused of fraudulently enlisting in the Corps by failing to reveal his

criminal history. His responses were the same that he provided to the recruiting staff but to no

avail. He was informed that he would be discharged immediately. Petitioner, denied the right to

discuss this matter with counsel, executed the discharge documents and on January 8, 1996, he

was discharged from the Corps.

   With his discharge, Petitioner returned home and assumed that this phase of his life was over.

Only within the past year did Petitioner learn of the consequences of his discharge.

  Petitioner obtained a copy of his DD-214 and learned that his discharge reflected that he had

been discharged for fraudulent enlistment based upon the drug sale allegation under paragraph

6204.3 of the MARCORSEPMAN and was given a reenlistment code that reflects the severity of

the allegation.

   On November 20, 2000, after receiving advice on the procedures to expunge arrests stemming

from false or grossly mistaken police investigations under Penal Code section 851.8, [Enclosure

(5)], Petitioner sought and received an order from a judge in the County of Los Angeles finding

that he was factually innocent of the charges that caused his discharge from the Corps.

[Enclosure (6)]
   Petitioner never committed any criminal offense at any time in his life and should not now be

forced to accept discharge records that reflect a false basis. Furthermore, 6204.3 of the


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MARCORSEPMAN requires the basis of the discharge to be caused by the recruit's failure to

reveal a proven offense prior to enlistment. The facts of this petition are quite clear. Petitioner

revealed the offense to his recruiters prior to enlistment and he was factually innocent of the

charges. Accordingly, Petitioner should never have been discharged in the first place for this

basis and should not now be made to suffer the consequences of the errors of the recruiters and

the discharge authority.

                                     RELIEF REQUESTED
   Petitioner is respectfully requesting that the DD-214 be amended to make no reference under
paragraph 25, [Separation Authority], paragraph 26, [Separation Code] and paragraph 28,

[Narrative Reason for Separation] and the Reentry Code must be amended to read "RE 1A."

Respectfully submitted this 18 day of October, 2001.

Signed: T_ H_, Petitioner & K_ B_ M_, Esq. Civilian Counsel

Documentation

In addition to the service record, the following additional documentation, submitted by the
applicant, was considered:

     (1) DD-214 of Petitioner [1 page]
     (2) Declaration of Petitioner [3 pages]
     (3) Enlistment Contract [2 pages]
     (4) Certified copy of Minute Order, dated August 1, 1995 [3 pages]
     (5) Copy of California Penal Code section 851.8 [4 pages]
     (6) Certified copy of Minute Order, dated November 20, 2000 [2 pages]




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Docket No. MD02-00298


                            PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

       Active: None
       Inactive: None

Period of Service Under Review:

Date of Enlistment: 950328           Date of Discharge: 960108

Length of Service (years, months, days):

       Active: 00 00 17
       Inactive: 00 08 29

Age at Entry: 24                     Years Contracted: 8

Education Level: 14                  AFQT: 99

Highest Rank: Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency: NMF*                    Conduct: NMF

Military Decorations: None

Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

*No Marks Found in service record book.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:
MARCORSEPMAN Par. 6204.3.

Chronological Listing of Significant Service Events:

950325:        DD Form 398-2 (Record of Military Processing - Armed Forces of the United
               States): Applicant indicates the nature of offense or violation in 1993 as
               possession, sale, conspiracy for marijuana and that the charges were dismissed,



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            yet marked "No" to the questions concerning the possession, use or abuse of
            drugs.

951226:     Commenced initial active duty for training (recruit).

951229:     Medical evaluation by MCRD/MHU: Pt referred as a result of “Moment of
            Truth” screening, relates he feels he is "going to jump out of his skin." Pt relates
            he doesn't handle stress well. He relates his Mother has “liver cancer." He also
            has civilian charges pending for possession of THC with intent to sell. Pt relates
            he had no knowledge of this possession.
            In summary, 24 year old reservist who signed for school money did not disclose
            EPTE psychiatric counseling, legal issues, perseverating [sic] on mothers illness.
            No coping skills. ELS.
            Psychiatric history: Pt seen psychologist 2 years ago for personal problems with
            girl friend - "she took me for $10,000.00."
            Mental Status Exam: moderate degree of distress, restless behavior, depressed
            mood, no history of hallucinations, poor-fair/impaired insight and judgment.
            Diagnoses:
            AXIS I: Adjustment Disorder, rule out anxiety disorder.
            AXIS II: Antisocial Traits.
            Recommendation:
            ELS unsuitable, high risk in this setting, apprised and cooperative.

960104:     Applicant notified of intended recommendation for discharge with an entry level
            separation (uncharacterized) by reason of defective enlistment and induction due
            to a fraudulent entry into the U.S. Marine Corps. The factual basis for this
            recommendation is due to failure upon enlistment to divulge pre-service drug
            abuse/sales which would have effected his eligibility at time of enlistment.

960104:     Applicant advised of rights and having elected not to consult with counsel
            certified under UCMJ Article 27B, elected to waive all rights.

960104:     Commanding Officer recommended entry level separation (uncharacterized) by
            reason of defective enlistment and induction due to a fraudulent entry into the
            U.S. Marine Corps. The factual basis for this recommendation was failure upon
            enlistment to divulge pre-service drug abuse/sales. Recruit has pending court for
            marijuana/hash sales.

960105:     GCMCA [CG, MCRD, San Diego, CA] directed the applicant's entry level
            separation (uncharacterized) by reason of defective enlistment and induction due
            to a fraudulent entry (drug sales).




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Docket No. MD02-00298


  PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960108 with an entry level separation (uncharacterized) by
reason of defective enlistment and induction due to a fraudulent entry - pre-service drug sales
(A). The Board presumed regularity in the conduct of governmental affairs (B). After a
thorough review of the records, supporting documents, facts, and circumstances unique to this
case, the Board found that the discharge was proper and equitable (C and D).

Issue 1. The Board did note an administrative error on the original DD Form 214, Block 28. The
Narrative Reason for Separation should read: “FRAUDULENT ENTRY INTO MILITARY
SERVICE.” This recommendation will be forwarded to the Commandant of the Marine Corps
Headquarters, Quantico, VA, for corrective action. No other narrative reason more clearly
describes the circumstances surrounding the applicant’s processing for administrative separation.
While undergoing recruit training, applicant disclosed during “Moment of Truth” screening that
he had been involved in the possession of marijuana with intent to sell and that he had a pending
civilian court date for these offenses. While the applicant did disclose a prior arrest for drug
related offenses on his DD Form 398-2, it is unclear from the record whether the applicant’s
“Moment of Truth” disclosure involved new charges or the previously disclosed arrest. In light
of this ambiguity the Board determined that the resolution of this case rested appropriately on the
above mentioned “presumption of regularity in the conduct of governmental affairs.” In sum, the
Board found by a 3-2 vote that the member’s “Moment of Truth” disclosure referred to drug
offenses not disclosed on the DD Form 398-2 and that the applicant’s chain of command
investigated this issue thoroughly prior to initiating administrative separation procedures. For
this reason, the applicant’s requested relief is denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment
codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval
Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge
nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally
done only during the processing of a formal application for enlistment through a recruiter. Relief
is therefore denied.

The applicant’s discharge characterization accurately reflects his service to his country. The
discharge was proper and equitable. Normally, to permit relief, an error or injustice must have
existed during the period of enlistment in question. No such error or injustice occurred during
the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an
unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in
civilian life, subsequent to leaving the service. Relief not warranted.

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an
application is received, at the NDRB, within 15 years from the date of his discharge.
Representation at a personal appearance hearing is recommended but not required. The applicant



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Docket No. MD02-00298

is strongly encouraged to personally appear before the Board with any additional evidence
pertaining to the issue upon which the Board based its decision.


Pertinent Regulation/Law (at time of discharge)

A. The Marine Corps Separation and Retirement Manual, MCO P1900.16E), effective 18 Aug
95 until present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review,
1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE
REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review,
1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review,
1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.




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Docket No. MD02-00298


                    PART IV - INFORMATION FOR THE APPLICANT


If you believe that 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 Directive
1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You
should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at
“afls14.jag.af.mil”.

The names, and votes of the members of the Board are recorded on the original of this document
and may be obtained from the service records by writing to:

               Naval Council of Personnel Boards
               Attn: Naval Discharge Review Board
               720 Kennon Street SE Rm 309
               Washington Navy Yard DC 20374-5023




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