Author: CAP
Last saved by: Department of the Navy
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Docket No. MD02-01131

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

ex-PFC, USMCR
Docket No. MD02-01131

Applicant’s Request

The application for discharge review, received 020806, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030515.  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 was denied proper legal representation

2.  My request to prosecute my platoon commander with harrasment was ignored

3.  I never had improper conduct during these mentioned incidences

4.  My request mast were denied at unit level (violation of rights)

5.  Hardship as result of Reserve incidents

6.  Until mentioned incidents, I had a perfect attendance, and reputation

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Documentation

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

Letter to Applicant from Board for Correction of Naval Records, dated June 28, 2002
Letter from Applicant, dated May 13, 2002
Discharge certificate, dated May 11, 1999
Thirty pages from Applicant's service record (found throughout documentation
Letter from Applicant to Senator, dated January 28, 2002
Letter to Applicant from Senior Staff Assistant for U.S. Senator, dated July 18, 1998 (2 copies)
Letters to Applicant from United States Senator, dated August 6, 1998 (2 copies, January 4, 1999 (2 copies)
Letter to United States Senator from Office of Legislative Affairs, dated December 22, 1998 (2 copies)
Letter to Applicant from United States Senator, dated August 8, 2001
Letters from United States Senate, dated July 27, 2001 and August 27, 2001
Letter to United States Senate, dated August 21, 2001
Letters to Applicant from United States Senate, dated March 18, 2002 and April 30, 2002
Letter to United States Senator from Office of Legislative Affairs, dated April 23, 2002
Dean's List notice for Fall Semester of 1999 (2 copies)
Letter to Applicant from Student Legal Services, dated March 18, 1998
Unsatisfactory participation worksheet. Dated February 11, 1999
VA deferral agreement and authorization/promissory note, University of Central Florida, dated September 11, 1996
Letter to Applicant from University of Central Florida, dated March 17, 1997
Statement of Understanding, unsigned and undated
Armed Forces of United States identification card
Degree of Bachelor of Science in Computer Engineering, dated August 5, 2000
Character reference, dated October 20, 1996
Letter to Applicant from University of Central Florida, dated December 21, 1999 (2 copies)
Letter to Applicant from University of Central Florida, dated December 19, 2000
Letter of recommendation, dated September 29, 2000 (3 copies)
Letter of recommendation, dated February 27, 2002
Letter of recommendation, dated April 23, 2002
Letter of recommendation, dated February 27, 2002
Letter of recommendation, dated March 1, 2002
Letter of recommendation, dated February 27, 2002
Letter to Applicant from Member of Congress, dated August 1, 2001
Letter to Applicant from Member of Congress, dated September 4, 2001
Letter to Applicant from Member of Congress, dated October 25, 2001
Statement from Applicant, dated January 30, 2000
Personal background information
Boot camp and the Marine Corps reserves training
Arrival to Marine Corps reserves station (Orlando, Fla.)
Harassment by Msgt C_
Unauthorized absence March 1998 drill
Letters for aid including Senator B_ G_
Return to the reserve station October 1998
Response to the letter from Department of the Navy
Closing argument
Military flyers that promote education, honor and leadership (6 pages)
Financial Aid/Pell Grant award for 1996-1998 (2 pages)
Letter to University Dean, dated September 4, 1997
Request for mast, dated April 5, 1998
Maintenance Platoon roster, dated December 1998 and April 1998
CWO P_'s testimony
Request for mast
MSgt C_'s letter to Applicant, undated
Great Aunt's memorial service invitation
Request for rescheduled inactive duty training/equivalent instruction, undated, unsigned
Request for rescheduled inactive duty training/equivalent instruction, dated December 6, 1998
List of make up dates
Three pages (page 31, 36, and 37)
Page from MCRAMM, 3300, 3-28
E-mail from Captain P_, dated April 3, 1998
Newspaper article
E-mail from UCF Student Veterans Association, dated June 22, 1998
Letter to Applicant from University of Central Florida, dated January 8, 1997

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:  950718		Date of Discharge:  990511

Length of Service (years, months, days):

	Active:    00  02  07
	Inactive:  03  07  15

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  76

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.1 (8)			Conduct:  4.1 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFRM, SMCRM

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:

951212:	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.

980409:	Applicant informed eligible but not recommended for promotion to Cpl for the month of May due to unauthorized absences.  Not available for signature.

980511:	Applicant informed eligible but not recommended for promotion to Cpl for the month of June due to unauthorized absences.  Not available for signature.

980604:	Applicant informed eligible but not recommended for promotion to Cpl for the month of July due to unauthorized absences.  Not available for signature.

980706:	Applicant informed eligible but not recommended for promotion to Cpl for the month of August due to unauthorized absences.  Not available for signature.

980801:	Applicant promoted to Cpl with only 8 months TIG.  IAW CO 1400.32A par 2201.3 the erroneous promotion is hereby waived.

980812:	Applicant informed eligible but not recommended for promotion to Cpl for the month of September due to unauthorized absences.  Not available for signature.

980908:	Applicant informed eligible but not recommended for promotion to Cpl for the month of October due to unauthorized absences.  Not available for signature.

981001:	Counseled and hand delivered a letter of Notification of Intent to Reduce in Rank.  

981001:	Counseled and hand delivered a letter of unsatisfactory participation in the Selected Marine Corps Reserve.

981004:	Counseled concerning drill participation, duties and responsibilities and the proper use of the Chain of Command.

981008:	Applicant informed eligible but not recommended for promotion to LCpl for the month of November due to unauthorized absence.  Not available for signature.

981107:	Applicant informed eligible but not recommended for promotion to LCpl for the month of December due to unauthorized absences.  Not available for signature.

981202:	Applicant informed eligible but not recommended for promotion to LCpl for the month of January due to unauthorized absences.  Not available for signature.

990106:	Applicant informed eligible but not recommended for promotion to LCpl for the month of February due to unauthorized absences.  Not available for signature.

990109:	Counseled for deficiencies in performance and conduct.  [Drill participation, duties and responsibilities.  Applicant currently has 21 unauthorized absences (UAs) from drill for the period of 980307 to 980913.  MCO P1001R.1 (MCRAMM) states that UAs from drill in excess of nine (9) provides grounds for the CO to initiate separation proceedings.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990207:	Hand delivered notification of intent to reduce and notification of separations proceedings.

990210:	Applicant informed eligible but not recommended for promotion to LCpl for the month of March due to unauthorized absences.  Not available for signature.

981001:	Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.  [Extracted from supporting documents submitted by the Applicant.]

990207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in Ready Reserve.  [Extracted from supporting documents submitted by the Applicant.]

990207:	Applicant advised of his 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.  [Extracted from supporting documents submitted by the Applicant.]

990211:	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 twenty-one unexcused absences from regularly scheduled drills.  [Extracted from supporting documents submitted by the Applicant.]

990426:	SJA review determined the case sufficient in law and fact. 

990426:	GCMCA [Commander, Marine Forces Reserve] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990511 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 through 6:  A characterization of service of under other than honorable conditions is warranted when the member’s conduct constitutes a significant departure from that expected of a Marine.  Even though the Applicant states he had prior perfect attendance and conduct, it does not mitigate his documented twenty-one unauthorized absences.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflect his disobedience of the orders and directives which regulate good order and discipline in the Marine Corps, and falls short of that required for an honorable characterization of service.  Furthermore, the record is void of any evidence to indicate the Applicant was denied mast or was harassed by his platoon commander.  The Applicant was counseled repeatedly and waived an administrative discharge board after consulting with legal counsel.  The discharge was proper and equitable.  An upgrade to honorable would be inappropriate.  Relief denied.  

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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  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/A0139/A9453/A9217/A9229/A9221