Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00571

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMCR
Docket No. MD05-00571

Applicant’s Request

The application for discharge review was received on 20050214.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and Narrative Reason for Separation be changed to “medical.”   The Applicant requests 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 20051206.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of unsatisfactory participation in the Ready Reserve.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“During my reserve duty an HMLA-773 I began to have severe knee pain in my right knee which kept me from being able to PT and to perform a PFT.  I was evaluated by medical on base and was not able to participate in my monthly reserve drill.  During this time my private physician referred me to an orthopedic surgeon who recommended an exercise program, which was followed for approximately six months with no real improvement in ability or pain.  In May I received an MRI and finally had arthroscopic surgery.  During this time I continually was unable to participate in monthly reserve drill.  I did, however, report to medical at NAS Atlanta every drill weekend to update my condition.  In August, 3 weeks before my surgery, the medical personnel reviewing my records told me he had to recommend me for a medical discharge due to the amount of drills I had missed.  I advised him of my current situation and the forthcoming corrective surgery.  He advised me that this was USMC policy in accordance to how long I had been unable to drill.  He then said he was recommending me for a medical discharge and that the Marine Corps did not want broken Marines.  My current USMCR records show that I have a “Under Other Than Honorable Conditions” discharge and I wasn’t actually discharged until June 16, 1999; almost two years after I should have been.  This is an incorrect classification of my discharge and is not in line with my character of service while I was in the reserves.  I pleaded with the Navy medical personnel not to give me a medical discharge as I was trying to fix my knee, yet they still did and now I have a discharge that is uncharacteristic of my service.  I’ve requested my medical records from the Department of Veterans Affairs in Decatur, Georgia.  They are unable to locate my USMCR medical records which I believe is the root of the problem with my discharge.  I believe that my medical records must have been misplaced as some point and my medical discharge recommendation along with them.”

Applicant’s Remarks:  “I ask that I be given the Medical Discharge I was supposed to receive.  If you examine my overall character of service in the USMCR you will see that I was top of my class in my helicopter school in NAS Millington and was meritoriously promoted because of this.  Just one year before my knee injury became a factor, I was awarded the Good Conduct Medal.  I served proudly in the USMCR and I don’t want my service to be characterized as “other than honorable” due to lost records.  I want honor in my service and I am asking for my discharge be changed to Medical.  I wrongly assumed that I had been medically discharged and didn’t fully investigate my discharge until 2003.  It has taken me over a year to locate my private medical records and assemble the supporting information.  I had hoped that my USMCR medical records would irrefutably show that I was to receive a medical discharge.  Though I believe that the inability to locate my medical records shows that there has been a mistake in the characterization of my discharge and not all of the facts of my service have been taken into consideration.  Please take into consideration all of the facts that are available from the USMC and the documents that I’ve enclosed here.  A comprehensive look should prove that my service should not be “other than honorable.  Thank You.”

Documentation

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

Separation Authority ltr dtd June 25, 1999
2 Copies of DD Form 214
2 Copies of DD Form 215
Dr. S_ S_’s Clinical Data & Office Notes, MRI Findings, Surgical Notes (10 pages)
Copy of service record pages (8 pages)
Applicant’s change of address notification dtd April 14, 2005
Applicant’s letter, dtd May 9, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19920805		Date of Discharge:  19990616

Length of Service (years, months, days):

Active:    00  09  29  
	Inactive:  06  10  13

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  8

Education Level:  12				AFQT:  80

Highest Rank:  LCpl				MOS:  6114

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.7 (9)		Conduct:  4.7 (9)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Expert Badge.  Armed Forces Reserve Medal and Selective Marine Corps Reserve Medal listed on MCTFS Basic Individual Record.

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:

921101:	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.

921102:	Applicant reported for initial tour of active duty for training.

930830:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

990317:	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 at the last known address.  Lance Corporal H_ (Applicant) did not return a statement with the Acknowledgement of Rights.  The notification package enclosures (1), (2) and (3) was sent certified mail because the Marine lives outside 50 mile radius from the drill site.  The package was returned unclaimed/undeliverable.  [EXTRACTED FROM CO’S LTR OF MAY 1, 1999.]

990501:	Commanding Officer, Marine Aircraft Group 42, recommended to the Commander, Marine Forces Reserve (SJA) Applicant be discharged under other than honorable conditions by reason of unsatisfactory participation.  The factual basis for this recommendation was due to excessive unexcused absences from 4 January 1997, through this date.  Commanding Officer’s comments:  “Our attempts to counsel Lance Corporal H_ (Applicant) via mail concerning missed drills has been unsuccessful.  The Marine did not respond to certified mail.  Lance Corporal H_ (Applicant) has made no effort to resolve these absences, see enclosure (9).  Lance Corporal H_ (Applicant) has demonstrated through his unsatisfactory drill participation and lack of response to numerous correspondence a total lack of concern as to the consequences of his inaction.  Lance Corporal H_ (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.” 

990511:	SJA review determined the case sufficient in law and fact.

990511:	GCMCA, Commander, Marine Forces Reserve, directed the Applicant's discharge under other than honorable conditions by reason of failure to participate (Reserve not on active duty (board waived).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990616 by reason of unsatisfactory participation in the Ready Reserve (A, B, and C) with a service characterization of under other than honorable conditions.  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 (D and E).  

When the service of a member of the U.S. Marine Corps Reserve 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.  From 19970104 – 19990207 the Applicant missed 64 drill periods; 34 of the absences were unexcused and 30 of the absences were excused (although excused, not made-up).  The applicable regulations show that administrative separation proceedings may be initiated when a servicemember misses nine unexcused drills.  There is no evidence in the record to show that the Applicant made-up the excused 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 Reserve and falls far short of that required for an upgrade of his characterization of service.  The summary of service clearly documents that failure to participate (reserve not on active duty) was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief is not warranted.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant contends that he reported to medical personnel at NAS Atlanta every drill weekend to update his condition and that Navy medical personnel told him that he would be medically discharged.   The record, however, contains no evidence to support the Applicant’s contentions and there is no evidence of any wrongdoing by the government in the administrative discharge process.  Further, the Applicant failed to respond to the certified mail notifying him of the intended recommendation for administrative discharge, which constitutes acknowledgement and waiver of rights.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  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 1995 until 31 Aug 2001.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

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