Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. MD02-00394

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

 ex-Pvt, USMC
Docket No. MD02-00394

Applicant’s Request

The application for discharge review, received 020205, 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 021022.  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 that my discharge is inequitable due to the fact that I had written my unit several times about my address and had also called them to advise them of my current financial and living situation.  In December of 1999 I had to make a move from Eau Claire, WI to Orlando, FL for my education.  I had provided documentation to the unit and even had my admissions officer from my school, Comair Aviation Academy type up a letter and send it to the reserve unit in Madison, WI.  I did not get a reply.  When I did get a reply from the admin clerk at the reserve unit in Wisconsin I was told to standby as far as drill participation. I had informed the unit that I had moved 1500 miles away to continue my education and would be in flight school and that I would like to either be transferred to another unit or to an IRR status.  I was again told to standby, but could send back my gear at any time.  I held onto the 782 gear until I received a notice of discharge. In FEB of 2000 1 began receiving drill task letters every month letting me know when to attend drill in Wisconsin.  These drill task letters had my current Orlando address on them.  This is how I know that the unit was aware of my current living situation as far as my address and my intentions.  When we arrived in Florida my wife could not find a job for three months and we had expended our entire savings to the sum of $40,000 on my education.  I was financially unable to purchase a plane ticket to Wisconsin once a month to attend drill.  I was also told that I needed to make up any drills that I had missed before I could have any sort of transfer to a unit in Florida or to IRR status for the remainder of my time at school. At this point I simply waited to hear from my unit over the telephone.  I was still receiving my current monthly drill task letters at my current Orlando, Florida address. I am stating that myself and my wife were experiencing great financial hardship due to my returning to school and her not being employed and I could not afford to travel 1500 miles per month to make a drill at the unit.  I am also enclosing supporting documents that show my enrollment dates at the school and the great costs incurred.  These documents also include my Florida address.

2.  I also believe that my discharge is inequitable because of the statements made in correspondence from the reserve I & I to the Commander, Marine Forces Reserve Dated 21 JUN 2000.  In the letter it is said that I have a documented history of being overweight and that I refused to weigh in (see attached documents).  I contest these statements and will offer proof to the contrary.  It is true that on 20 Jun 1999 I was over my max weight of 197 weighing in at 203 for the PFT.  I have no one to blame but myself for getting soft on recruiting duty.  I will also state for the record that I also had a first class PFT score on that day as well.  I was counseled and I was told that my promotion to Corporal was on hold until I lost the weight.  The following week we went to CAX in 29 Palms California.  During this exercise I lost 15 pounds.

After returning to Wisconsin I was working with Sgt. Major ML B_ of RS Twin Cities and Captain R_ M_ of RS Twin Cities on my third package to OCS.  I have enclosed the Photo Image for the Officer selection package that was taken by the Captain on 28 JULY 1999.  I weighed in for the PFT that day at 185 pounds and scored a 275 on the PFT.  The PFT was supervised by a Gunnery Sergeant D_ F_ of RSS Eau Claire, WI and signed as valid by that Marine.  I have also included other supporting documents from separate PFT's and medical exams to prove that I was a fit Marine and that this letter is biased. This letter also states that I had failed to respond to official correspondence and phone conversations.  This is not accurate.  The only official correspondence that I received were drill task letters and I did respond by calling.  There was only one time that I missed a reserve drill period while I was in Wisconsin and I was in bed with a back injury.  I sent in by fax an appropriate letter from a physician, as well as copies of the prescription drugs that I was taking that prohibited me from driving. Unfortunately there are no references in this letter about all of the drills that I attended voluntarily while attached to the recruiting station.  While I was attached to RSS Eau Claire I would get permission from my NCOIC to take the weekend off and Drive down to Madison (167 miles) to voluntarily drill with my reserve unit without pay because I really enjoyed the unit and felt obligated to remain active in it.  I did this for almost sixteen months.

3.  I also feel that my discharge was inequitable because I had no say in what
proceedings were to take place and was not informed of my status of reductions and the intended termination from the Marine Corps reserves until after the fact.  I am also aware that I was sent a statement of rights and that I had also sent in a statement on my own behalf and that it was never received by the review board nor was it a part of the proceedings.  I had also attached eighty-eight supporting documents. The entire time that all of the discharge papers were being processed on my behalf I was unaware of it because the paperwork was being sent to an address that I had not lived in for two years (prior to 2000).  I never received any paperwork on the final discharge until September 2001.  This was sent to me because I called the unit in June of 2001 to find out the result of the review board.  This is the first contact that I had with the unit since June of 2000. I have attached some documents from my discharge package that states that I did not send a reply do the notification of rights.  I also have documents that state just the opposite which leads me to believe that my letter and supporting documents were never taken into consideration by the review board because they never received them.  Please review over these documents.

4.  I believe that my discharge is inequitable because all of my supporting documents were not included at the proceedings.  I believe that in order for a just decision to be made all documents should be included for the board to make that decision. I believe that my excellent service record up until I left the state of WI should be taken into consideration.  I also believe that the fact that I was selected on two separate occasions to attend Officer Candidate School and flight school by a board of Marine Corps officers should be taken into account.  I also believe that my excellent Pro/Con scores should also be taken into account while making a decision.  I had averaged a 4.7 to 4.8 for the entire time that I was active in the Marine Corps until I moved to Florida.  I also believe that my letters of recommendation should be taken into account as well as personal references that I have attached. I strove to be an excellent Marine and to truly be a leader and while doing so I personally enlisted over a dozen young Marines to follow in my place as well as receiving a meritorious promotion.  I am hoping that my service record will show that. I believe that my discharge status should be upgraded to Honorable for all of the above reasons.  I am not a lawyer and cannot afford to be represented by one and all of these points and documents were collected and presented by myself for you to review.  I would like to let it be known that I love the Marine Corps and everything that it stands for and am proud to have been able to serve in such a noble profession.  But I believe that unfortunately my writing my Congressman when my unit would not release me to make a third attempt at Officer Candidate School had definitely had something to do with the way this whole situation was handled.  I am aware that I had made some people very angry and they sold me as such.  I also know that I could have handled this situation much differently and wish that I had. The truth is that all I really ever wanted to do was to be a great Marine.  And being an Officer in the Marine Corps and a Marine Aviator was the greatest privilege of all in my eyes.  Now I am faced with being a Marine that was discharged less than honorably and that is very hard to swallow.  I believe that my service in the Marine Corps was very honorable and I would be very grateful if it were recorded that way in my service record.  I am also an FAA rated commercial pilot and I am sure that this will greatly disrupt my chances of gaining employment and being able to support my family in the future.  It was never my intention to be discharged from the Marine Corps when I made this move to Florida to further my education.  I am very grateful to be given this chance to have my records looked at again.  Thank you for taking the time to review my appeal.

Respectfully Submitted, (Signed by Applicant)

Documentation

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

COMAIR Aviation Academy Student Audit Report dtd 2 Jul 01 (3 pages)
COMAIR Aviation Academy Certificates of Completion (5 certificates)
Dept of Transportation, FAA, Certificates of Completion (2 certificates)
Certificate of Graduation, COMAIR Aviation Academy, dtd 16 Oct 00
Certificate of Graduation, Univ of Wisconsin, Bachelor of Science, dtd 20 Dec 97
Service Record pages (45) 

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(PLC)		970307 - 971219	COG

Period of Service Under Review:

Date of Enlistment:  971220		Date of Discharge:  010519

Length of Service (years, months, days):

	Active:    00  03  11
	Inactive:  03  01  19

Age at Entry:  25			Years Contracted:  8

Education Level:  16			AFQT:  99

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (9)		Conduct:  4.0 (9)

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC

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:

971218:	Enlistment contract into the USMCR documents 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.

971219:	Prior service/dependent/addendum moral waiver granted for enlistment.

981005:	Commenced active duty for training (IADT).

981119:	Officer Candidate Class Application for Applicant submitted by CO, MCRS Minneapolis, MN.

990107:	Selected for participation in the Officer Candidate (Aviation) Program.

990115:	Released from active duty and transferred to reserves, having served 3 months 11 days of active duty and received "honorable" characterization of service.

990124:	Commenced officer candidate training.

990126:	Dropped from officer candidate training due to "not physically qualified."

990620:	Eligible but not recommended for promotion to Corporal because of assignment to the weight control program.

990620:	Counseled concerning the following deficiency: failure to meet Marine Corps height and weight standards per MCO 6100.10B.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990924:	Sgt A_ notified Applicant of unsatisfactory drill participation via home phone and left message.

991203:	Sgt A_ notified Applicant of unsatisfactory drill participation via home phone and left message that he must come to drill or fax reason for not being able to drill.

000222:	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.

000222:	SSgt P_ notified Applicant of unsatisfactory drill participation via home phone and spoke with Applicant's father in which the father provided a new address and telephone number for Applicant.  Applicant's father also stated that he sent the Notice of Separation to his son and he verified he had received it.  SSgt P_ then contacted Applicant concerning his absence from drill and the Applicant stated that he was disappointed in the way the Corps had treated him.  He stated that he avoided all calls and or contact with the Marine Corps.  SSgt P_ explained his obligations and informed him that he could get back into a good standing by making up his drills in Florida and a possible inter-unit transfer.  Applicant stated this was not an option and that when he wanted to be a Marine Corps Officer, the Corps would not let him.  He also stated "I am fed up with this crap and he has no plans on coming back to the Reserve program."  PFC B_ (Applicant) mailed his rebuttal directly to the Company Commander's home address.

000303:	Applicant's letter of rebuttal addressed to Maj. W_ F_, Commanding Officer and to the Naval Discharge Review Board.

000306:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.

000621:	Inspector-Instructor, 2/24, 4^th MarDiv, FMF, recommended to Commander, MFR (SJA) that Applicant be administratively discharged since he has had a documented history of being overweight and has demonstrated a lack of concern in fulfilling his obligation to the Marine Corps Reserve through his unsatisfactory drill status and failure to respond to official correspondence and phone conversations.

000621:	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 excessive unexcused absences from 3 December 1999 through this date.  Commanding Officer’s comments (verbatim):  "Private B_ (Applicant) has demonstrated through his unsatisfactory drill participation and lack of response to numerous correspondence a total lack of concern as to consequences of his inaction.  Private B_ (Applicant)'s blatant disregard to his obligation to the Marine Corps Reserve leads me to conclude he has no potential for further service nor any mobilization potential."

010423:	GCMCA [Commander, Marine Corps Reserve] directed the Applicant's discharge under conditions other than honorable by reason of failure to participate in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010519 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 Board found that the Applicant’s financial hardship and distance from his Home Training Center (HTC) does not mitigate his failure to participate in his reserve drills to the degree necessary to warrant relief to his discharge.  The record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  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. Relief denied.

Issue 2.  There was no exemption in the weight control program based upon a Marine’s PFT score.  The Applicant’s grievance concerning his placement on the weight control program does not provide a basis for relief, nor provide an excuse for his failure to attend scheduled drills.  Relief denied.

Issue 3.  The Applicant’s allegation that he was denied his rights concerning his administrative separation is without merit.  On 000306, the Applicant acknowledged that he was advised of his rights, and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights (including the right to request an Administrative Discharge Board) except the right to obtain copies of the documents used to support the basis for the separation and to submit a statement.  The Applicant’s statement is contained in the official record.  The Applicant was properly notified of his separation proceedings and of his rights concerning the separation.  Relief denied.

Issue 4.  The Applicant implies that an Administrative Discharge Board reviewed the Applicant’s case prior to his discharge.  No Administrative Discharge Board was convened because the Applicant did not request it.  The Board reviewed the Applicant’s record of service to include his proficiency and conduct markings, his nomination and acceptance to OCS, and the period in which the Applicant did commendable work as a recruiter assistant and drilled with his reserve unit without pay.  However, even these commendable actions do not mitigate his subsequent misconduct to warrant an upgrade to his characterization of service.  Relief 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 is evident 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, good conduct in civilian life subsequent to leaving the service, or to enhance employment opportunities.  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 “afls10.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/A9401/A9221/A9321