Author: CAP
Last saved by: donald.e.brown1
Company: NCPB

Docket No. MD05-00919

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

FOR OFFICIAL USE ONLY

ex-LCpl, USMCR
Docket No. MD05-00919

Applicant’s Request

The application for discharge review was received on 20050503.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20050908.  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 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:

“My discharge was improper, due to an obvious administrative miscommunication between the Power Line Department, VFMA-134 and MAG-46.  During my six year enlistment period, I held positions of leadership, promoted twice meritoriously, Honorably Discharged from the USMC on 910325, Honorably Discharged from the USMCR on 931007 and Honorably Discharged from the USARNG on 951121.

Due to the fact that I was working 50-60 hours a week as an aircraft mechanic on night shift and lived l25 miles away it was agreed ,in the interest of aviation safety, to continue to work on VMFA-134 aircraft through the drill weekends on night shift.  On 961205 I received via certified mail, recommendation for administrative discharge and at the next drill weekend brought it to my NCOIC’s (MSgt. B_) attention to rectify.  I continued to drill as previously arranged without any mention from the squadron as to any conflicts or disparities.  On 970503 I began checking out of the squadron and met with the unit Training Rep (S-3) and was offered a re-enlistment with a promotion to Sgt. (E-5).
On 970504 I checked out of both Squadron S-1 and Group S-1 and no mention was made to any pending administrative actions.  Until my recent request for my records, I never saw the last Administrative Remarks (Pg. 11) in my SRB, as indicated by my missing signature of acknowledgment at the top of the page.  According to my current records, a recommendation for administrative discharge letter from Commander, Marine Forces Reserve to Commandant of the Marine Corps (MMSB-20) was signed dated 29 APR 1997.  This was a month and a half after I was satisfactorily discharged from VMFA-134, MAG-46, 4th MAW on 970514”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“I recently read an article in my local paper about Lt. Col. M_ who lives and works in the same town as myself and our children attend the same elementary school.  He is the current Commanding Officer of HMH-769, the former squadron which I honorably served.  I was relieved to hear the squadron had not been deactivated.  HMH-769 and Lt. Col. M_ had recently returned from a tour in Afghanistan and I was proud and inspired by his service and sacrifice.  I was so inspired, I began researching MOSs and Reserve squadrons that I could most easily transfer into based on my current employment as a G-IV (C-20) Pilot & Chief of Maintenance.  I found that flying with VR-5l as a 7553 C-20 Pilot is nearly exactly what I do in the civilian sector.  Presently, I fly with a retired Navy Pilot, Captain D_ W_.  The other option was MOS 6004 as an Aircraft Maintenance Engineer Officer.  The Marine Corps had given me my foundation in aviation and in this post 9-11 world I have been yearning to give more than grass roots donations and decided to reenlist.

When I contacted the prior service recruiter over the phone he said my reenlistment code was RE4 and I would need to obtain my Service Records before starting any paper work.  When I did receive my records, I was shocked to find I was discharged from VMFA-134 with an Administrative Other Than Honorable discharge.  I felt as if I was punched in the gut.  It may as well have been a Dishonorable discharge in my opinion.  I feel this discharge is inequitable to punctuate the end of my six years of motivated honorable service with an Other Than Honorable discharge because of an administrative miscommunication on two and a half drill weekends.

I appreciate the board for reviewing my case and if they deem necessary I can appear in person with council if needed.  Thank you.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Request for RIDT/EIOD, dtd February 29, 1996
Request for RIDT/EIOD, dtd February 1, 1996
Check-out sheet (SMCR Personnel), dtd May 3, 1997
Six pages from Applicant’s service record
Applicant’s DD Form 214 for service ending March 25, 1992
Applicant’s DD Form 215 for service ending March 25, 1992
Letter of recommendation from MSgt, USMCR, (Ret.) dtd June 15, 2005
Letter of recommendation from Colonel, USMC (Ret.), dtd April 12, 1994
Letter of recommendation from LTC, AUS (Ret.), dtd March 25, 1994
Memorandum of recommendation from MAJ, AV, CA, ARNG, dtd March 15, 1994
Citation, dtd January 27, 1992
Cover letter from Applicant, dtd July 27, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USMCR	19900821 - 19910604		HON
		   USMC	19910605 - 19920325		HON
		   USMCR	19920326 - 19931007		HON
		   USARNG	19931008 - 19951121		HON

Period of Service Under Review:

Date of Enlistment:  19951122		Date of Discharge:  19970514

Length of Service (years, months, days):

Active:    01  04  23
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  24

Years Contracted:  3

Education Level:  12				AFQT:  78

Highest Rank:  Cpl				MOS:  6123

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.7 (2)				Conduct:  4.7 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  National Defense Service Medal, Rifle Marksmanship Expert Badge

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:

960125:	Applicant missed drill on 960125 and 960126 due to an unexcused absence.  [Extracted from 984 remarks]

960201:	Applicant requested RIDT for 960106 drill on 960202.  Approved by Reserve and Active OIC/NCOIC.  Not signed by Commanding Officer.  [Extracted from supporting documents]

960229:	Applicant requested EIOD for 960126 drill on 960301.  Approved by Reserve and Active OIC/NCOIC.  Not signed by Commanding Officer.  [Extracted from supporting documents]

961005:	Applicant missed drill on 961005 and 961006 due to an unexcused absence.  [Extracted from 984 remarks]

961102:	Applicant missed drill on 961102 and 961103 due to an unexcused absence.  [Extracted from 984 remarks]

961105:	Letter of unsatisfactory participation in the SMCR for drills missed on 961102 and 961103 mailed to Applicant

961202:	Applicant notified of intended recommendation for under other than honorable conditions discharge by reason of unsatisfactory participation.  The least favorable characterization possible is under other than honorable conditions.  The factual basis for this recommendation was ten missed drills during the preceding 12 month period on 25 January 1996; 5 and 6 October 1996; and 2 and 3 November 1996.  Certified mail # P521 367 017.

961203:	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.  

961205:	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)]

970301:	Applicant missed drill on 970301 and 970302 due to an unexcused absence.  [Extracted from 984 remarks]

970319:	Letter of unsatisfactory participation in the SMCR for drills missed on 5-6 October 1996 and 1-2 March 1997 mailed to Applicant.

970325:	Commanding Officer, Marine Aircraft Group 46, recommended Applicant’s discharge with a under other than honorable conditions by reason of unsatisfactory participation; specifically, failure to attend drills as follows: Fourteen missed drills during the preceding months on 25 January 1996, 5 and 6 October 1996; and 2 and 3 November 1996; and 1 and 2 March 1997.

970405:	Counseling:  Advised of deficiencies in performance and conduct (Failure to obey an order or regulation by not participating in the Direct Deposit Program as required by current directives), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.  [Unsigned]

970421:	SJA review determined the case sufficient in law and fact.

970421:	GCMCA, Commander, Marine Force Reserve, directed the Applicant's discharge with a under other than honorable conditions by reason of failure to participate (Reserve not on active duty (board waived)).  GCMCA also directed the administrative reduction of the Applicant to pay grade E-3 upon separation in accordance with paragraph 6311.8 of the reference.

970504:	Applicant completed checking out of unit.  [Extracted from supporting documents]

970514:	Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970514 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).  The Board presumed regularity in the conduct of governmental affairs (F).

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 his failure to complete his contract with the Marine Corps.  The record shows the Applicant’s 14 unexcused absences from drills.  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 Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge was improper due to an “obvious administrative error.”  The Applicant states that he began checking out of his unit on 19970503, after serving roughly 1 year and 5 months of his three-year contract, and that he did not know that he had received an under other than honorable conditions discharge until he sought reenlistment.  On 19961105 the Applicant was notified by mail of his unsatisfactory participation for missed drills on 19961102 and 19961103.  On 19961205, the Applicant accepted a certified mail notification by his Commanding Officer, indicating the Commanding Officer’s intention to recommend the Applicant’s discharge due to missed drills on 960125, 961005, 961006, 961102 and 961103.  The Applicant then missed drills again on 970301 and 970302 and was again notified by mail of his unsatisfactory participation.  The Board found that the Applicant’s unsatisfactory participation is well documented and that the Applicant’s issues are without merit.  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.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  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.  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.

F.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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.