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Docket No. MD02-00302

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

   ex-Pvt, USMCR
Docket No. MD02-00302

Applicant’s Request

The application for discharge review, received 020123, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not designate a 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 unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/UNSAT PARTICIPATION IN READY RESERVE, authority:  MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I believe an error occurs to be unjust in the fact that the discharge was isolated solely on my non-participation due to a family obligation.  The family obligation involved the illness and custody dispute with my son, N_ P_.  I am a single father who is fully responsible for his well being.  I had good standing in the service and grade marks.  I was meritoriously promoted in basic training.  My composite score does not show any negative comments or remarks.  As a result of my non-participation, I was demoted in rank.  However, as stated above, I did not receive negative remarks before my dismissal from the military.  In addition, my departure from the Marine Corps Reserve, I did not receive my DD Form 214 form.   During my time in the Marine Corps, I gave one hundred percent in all activities performed.  

2.  My "Other Than Honorable" discharge has affected my status as a police officer in the Commonwealth of Kentucky.  A qualifying requirement involves those serving or served in the military MUST have an Honorable discharge.  I was certified as a police officer in Kentucky before I was discharged from the Marine Corps.  I was then forced to resign as a police officer due to document 1 requirements.  One reason I would like to see my discharge changed is because it affects my life in terms of career choice and family decisions.  I take great pride in serving my community as a police officer.  Without a change in my discharge status, I will not be able to serve my community with the talent I have been given.

Documentation

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

Applicant's ltr to Board dtd 15 Nov 01
Newport Police Department Policy/Procedure page 
Certificate of Baptism of applicant's son
Under Other Than Honorable Conditions Certificate of Discharge 
Certificate of Meritorious Promotion dtd 12 Dec 97
Dept of Army Diploma from Military Police School dtd 27 Mar 98
USMC Diploma from School of Infantry dtd 14 Jan 98
Applicant's Record of Service
Certificate from Dept of Criminal Justice Training (Kentucky Justice Cabinet) dtd
3 Dec 99
Certificate from Peace Officer Professional Standards dtd 10 Mar 2000
Certificate from Dept of Criminal Justice Training (Kentucky Justice Cabinet) dtd
30 Apr 1999
Certificate of Completion from Dept of Criminal Justice Training (9/29/99 to 10/1/99)
Certificate of Completion from Dept of Criminal Justice Training (11/5/99 to 11/15/99)
Certificate of Completion from Dept of Criminal Justice Training (7/18/00 to 7/21/00)
Certificate of Completion from Dept of Criminal Justice Training (4/7/00 to 4/7/00)
Certificate of Completion from Dept of Criminal Justice Training dtd 28 Dec 96
Certificate of Marine Corps Marathon dtd 22 Oct 00
Letter of Recommendation from Sgt. C_ G. C_, Newport Police Department dtd 9 Jan 01
Letter of Short-Term Employment from Sgt. M_ B_ dtd 20 Dec 01

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:  970627		Date of Discharge:  000508

Length of Service (years, months, days):

	Active:    00  06  14
	Inactive:  02  03  28

Age at Entry:  25			Years Contracted:  8

Education Level:  12			AFQT:  36

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.3 (5)		Conduct:  3.6 (5)

Military Decorations:  None

Unit/Campaign/Service Awards: Pistol Marksman, Rifle Marksman

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/UNSAT PARTICIPATION IN READY RESERVE; authority:  MARCORSEPMAN 6213.

Chronological Listing of Significant Service Events:

970915:	Enlistment contract into the USMCR documented acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

970915:	Commenced Initial Active Duty for Training (IADT).

980328:	Released from IADT, having completed 6 months, 14 days of training and received a characterization of service as "honorable."

980913:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

981003:	Administratively reduced to rank of Private for unsatisfactory participation in the Marine Corps Reserve.

981004:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

990117:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

990411:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

990516:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

990516:	Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail, return receipt requested.  Applicant receipted for letter by return signature but failed to acknowledge the contents.  The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN, par. 6303).

990606:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

990711:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

990808:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

990911:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve.  The factual basis for this recommendation was due to member's accumulation of an excessive number of unexcused absences from regularly scheduled drills.

990912:	Counseled for deficiencies in performance and conduct [unsatisfactory participation].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [NOT AVAILABLE FOR SIGNATURE.]

991230:	Resubmission of administrative discharge by reason of unsatisfactory participation in the Marine Corps Reserve due to original being lost in the mail.

000320:	GCMCA [Commander, Marine Forces Reserve] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to failure to participate in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000508 under other than honorable conditions for misconduct due to unsatisfactory participation in the Ready Reserve (A, B, and C).  The Board presumed regularity in the conduct of governmental affairs (D).  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 (E and F).

Issue 1.  The applicant’s average proficiency and conduct markings, and composite score are not sufficient to mitigate his misconduct which consisted of his failure to participate in his reserve unit drills.  While he may feel that his responsibilities as a single father were factors that contributed to his actions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The applicant received numerous page 11’s for his unexcused absences and waived his right to contest his involuntary separation.  Relief denied.

Issue 2.  The Board has no authority to upgrade a discharge for the purpose of enhancing employment opportunities as requested in the issue.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  The applicant’s discharge characterization accurately reflects his service to his country.  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.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95. 

B.  Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C.  Table 6‑1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95, Guide for Characterization of Service.

D.  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.  

E.  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.

F.  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.

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

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:  A8400/A9307/A9401/A9217/A9201/A9445/A9221