Author: CAP
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Docket No. MD03-01179

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

 ex-LCpl, USMCR
Docket No. MD03-01179

Applicant’s Request

The application for discharge review was received on 20030620.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040423.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 stated

Applicant’s issues, as stated on the application:

“1.  My name is I_ B_ (Applicant) I was involuntarily discharged from the United States Marine Corps Reserve on December 28, 2000.  The reason for my discharge was “Unsatisfactory Participation in the Ready Reserve.” I have since been trying to get back into the Marine Corps to fix this deficiency, however, all my efforts have been futile.  I am trying to get my discharge upgraded because I feel that the discharge was given unjustly.  I am of good character and letters of recommendation from college professors and my employers can prove this.  I am a student at the New Jersey Institute of Technology and I am in good academic standing.  I realize that I did not take the best course of action by doing what I did but it was not totally my fault.  On the other hand, I am willing to do whatever it takes to fix my record.  I have plans to work for the government in law enforcement after I graduate or to become an officer in the military.  I understand that my current discharge status is going to hinder my chances for living my dream and doing something for my country that I so strongly pledge allegiance to.  I am graduating this December and have already applied to the State Police of New Jersey.  My current discharge status would probably impede me in achieving this goal.

This letter is in reference to my Unsatisfactory Participation in the Ready Reserve.  I joined the Marine Corps Reserve because I was planning on becoming an officer in the military or go into law enforcement but I wanted to be in the military while I was in college.  I always wanted to be in the Marines so I decided to enlist after I graduated from high school.  When I went to boot camp everything went well.  After that, I went to MCT and then I went to my MOS school.  I was in the top 5% in my MOS school.  I never got below an 85% on any of my tests.  Furthermore, upon completion of MOS school I was discharged honorably from Active Duty.

I checked into 6th Motor Transport Battalion almost immediately afterwards.  From the outset the unit seemed incoherent.  I was running all over the place my first few drills there because they couldn’t decide where to put me.  Every time I would say something my superiors would ignore me.  After I checked in, which took a terribly long time, I was ready to work on what the Marine Corps had trained me to do which was ground radio repair.  I spent 8 months in 29 Palms, CA learning my MOS.  I came into the unit so motivated and I was ready to take on any kind of challenge related to my MOS or anything else.  However, I never even saw a radio.  I would always ask my fellow Marines if there were any radios that need to be fixed and they would reply in the affirmative.  They would always complain about how the radios didn’t work.  This went on for the two years that I was at the unit.

I was in 29 Palms, CA for quite some time.  I was very discouraged to see that my skills were not being utilized and that I was being lied to all the time.  I understand that I had a responsibility and a duty to fulfill.  However, the Marine Corps also has a responsibility and the unit didn’t fulfill theirs either.

At every drill I would wonder when I would get a chance to utilize my specific skills that I spent so hard working for and that the Marine Corps spent so much time, money, and effort in training me in.  Less than six months into my time at 6th Motor Transport Bn.  I was promoted to the rank of Corporal.  I spent hardly a year and a half in the Marine
Corps and I earned that rank.  This is almost unheard of.  Despite the increase in rank I still had no say in what was going on.  During my enlistment there were so many different CO’s, XO’s, and Staff NCO’s that came and went.  I talked to many of them and they said left the unit because they felt the same way I did.

Instead of working in my MOS field I was cleaning rifles, helping out supply, and other absurd jobs.  I have no problem in doing those duties.  Yet, at every single drill I would do the same monotonous duty and it got so out of hand that I couldn’t take it anymore.  This had been going on for more than two years and nothing was being done about it.  No matter what I said or did I couldn’t change anything.  I was so discouraged, dejected, and demoralized by this time that I was beginning to suffer from depression.  At that time, I wanted a way out and my actions were taken without any thought.

Moreover, I was in excellent shape while the rest of the Marines couldn’t even keep up in physical training.  They were always falling out of runs while I was constantly in the front.  I am not a lethargic person and I do my duties to the best of my ability.  I didn’t enlist in the Marine Corps to sit around and do absolutely nothing.

I realized long ago that I should’ve just stuck through with whatever was going on despite the deplorable condition of the unit.  The course of action that I had taken was totally wrong.  This discharge will impede me in going into the career of my choice, which is law enforcement.  No one can possibly understand the pain that I feel because I want to make a positive contribution to my country and I am unable to do so because of my current discharge status.  I understand that I didn’t take the right action.  I am seeking to get my military discharge upgraded so that I can do something for my country especially in this critical time.

Sincerely,
I_ B_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“2.  (Equity Issue)  This former member further request that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

Documentation

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

Copy of DD Form 214
Administrative Discharge Package
Acknowledgement of Rights
Affidavit of Service
Certified Mail and Return Receipt copies
Record Book Documents (Enlistment Contract, NAVMC 116, MCTFS printout, NAVMC 118)
Administrative Reduction Order, Enlisted Screening Board Ltr dtd 21 May 00, Notification of Intent Ltr dtd 05 Apr 00, Applicant Ltr dtd 21 Apr 00, Notification Ltr undated, Certified Mail and Return Receipt copies
MCTFS printout
Unsatisfactory Participation sheets, Unsatisfactory Participation Notification
Certified Mail and Return Receipt copies, SGLI termination notice
Ltr frm J_ A_ dtd 23 Mar 00
Certified Mail and Return Receipt copies
Certification of Good Conduct dtd 09 Jul 03
Ltr from Trustcompany Bank, undated
Certificate of Vehicle Title
State of NJ Insurance Identification and Registration
Ltr from Department of Veteran Affairs Ltr dated 09 Mar 00
Ltr from Department of Veteran Affairs Ltr dated 15 Jul 03
AVTech Certificate
Sun Microsystems Score Report
Loan Statement, undated
Bachelor of Science course worksheet
New Jersey Institute of Technology Transcripts, not official
Ltr from R_ B_ dtd 10 Jul 03
Ltr from G_ D_ dtd 09 Jul 03
Notice of credit line increase, undated
New York City Department of Citywide Administrative Services notice, undated
New Jersey State Police Ltr dtd 01 May 03
Ltr from R_ H_ dtd 31 Dec 02
Email from Applicant, undated
Ltr from R_H_ dtd 8 Jan 03
Ltr from R_H dtd 8 Jan 03
Ltr from F_ P_ dtd 27 Nov 02
Position Description form dtd 8 Feb 02
Ltr from W_G_, undated
Ltr from E_ M_ dtd 21 Jul 03
Middesex County Assoc of Chiefs of Police Membership Card
Email from O_ E_ dtd 21 Jun 03
Email from M_ M_ dtd 20 May 03
IEEE membership card
Pi Kappa Phi Fraternity certificate

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:  970501		Date of Discharge:  001228*

Length of Service (years, months, days):

	Active:    00 11 27  
	Inactive:  02 07 19

Age at Entry:  19			Years Contracted:  8 

Education Level:  12			AFQT:  66

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (6)			Conduct:  4.0 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

* Date provided by Applicant

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:

970505:	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.

000323:	Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.

000405:	Applicant notified of intent for administrative reduction for unsatisfactory participation and or performance of reserve training in the Selected Marine Corps Reserve.

000521:	Applicant notified of administrative reduction in rank to Lance Corporal with a rank of rank of 980701 and an effective date of 000521.

000519:	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 on 000629 but failed to acknowledge the contents.  The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).

000630:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve.  Commanding Officer’s comments (verbatim): [LCpl Burki’s actions are a clear indication that he desires no association with the Selected Marine Corps Reserve.  LCpl Burki accumulated (38) unexcused absences, which were never made up.]

001209:	SJA review determined the case sufficient in law and fact.

001211:	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 20001228 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.   When the service of a member of U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by 38 unexcused absences.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2.  The Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He waived his rights to administrative review.  He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits.  An upgrade of the Applicant's discharge to an honorable characterization is not warranted.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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.
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