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

Docket No. MD05-01457

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMCR
Docket No. MD05-01457

Applicant’s Request

The application for discharge review was received on 20050104.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated a non-credentialed representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060405.  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, submitted at the time of the personal appearance discharge review, which supercede all prior issues submitted:

“ Issue 1. Equity.  During my time in the Marine Corps I was an outstanding Marine.  Coiming out of basic training I was Pvt. First Class, upon completion, received Meritorious Mass at MCT.  Once I arrived at 4^th Supply Battalion Greenville, SC, I received promotion to LCpl. and Later received another recommendation for Meritorious Mass.  I was a Marine should be.  I then made some bad decisions which resulted in my discharge From the Marine Corps.

Issue 2. Equity.  Since then I have been an active member in the church and community.  I have moved from SC to Va.  I am currently employed with Maytag Factory Services, were I am very productive, reliable, and courteous person.  All of what made me an Outstanding Marine.

2006 April 5
G_ L. K_  “ (Applicant’s signature)

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant at the time of the personal appearance discharge review, was considered:

Letter of character reference from D_ E. B_, dtd April 1, 2006
Letter of character reference from I_ E. C_, dtd April 4, 2006
Letter of character reference from W_ P_, dtd April 4, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19971018*– 19980709		ELS
	Active:    None

*Dates extracted from statement of understanding.

Period of Service Under Review:

Date of Enlistment:  19980715		Date of Discharge:  20010202

Length of Service (years, months, days):

Active:    00  05  04  
	Inactive:  02  01  14

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  8

Education Level:  12			AFQT:  35

Highest Rank:  LCpl			MOS:  2311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*		Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  None

*Not Available

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:

980714:	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.

990613:	Counseling:  Advised of deficiencies in performance and conduct (The proper procedures for obtaining an excused absence.  In the future, if you are unable to attend any scheduled IDT, you will contact the 1st SGT prior to the scheduled drill for further instructions.), necessary corrective actions explained, sources of assistance provided.

990613:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the quarter of July, August, and September because of unauthorized absences.  Applicant chose not to make a statement.

000504:	Unsatisfactory Participation: Ammunition Company 1^st Sgt J_ attempted to contact the Applicant by phone.  No answer.

000505:	Unsatisfactory Participation: Applicant contacted by phone by the Ammunition Company 1^st Sgt J_.  Applicant stated that he did not have transportation.  

000506:	Unsatisfactory Participation: Applicant contacted by phone by the Ammunition Company 1^st Sgt J_.  Applicant stated that he did not have transportation.

000507:	Unsatisfactory Participation: Ammunition Company 1^st Sgt J_ attempted to contact the Applicant by phone.  No answer.

000507:	Commanding Officer, Ammunition Company, notified the Applicant via letter (certified receipt #Z371753494 sent on 000509) of unsatisfactory drill participation on 000504, 000505, 000506, and 000507.  Applicant’s father signed receipt on 000511.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

0000511:	Applicant’s father, G_ K_, signed receipt and accepted delivery of the certified mail, receipt #Z371753494.
000610:	Unsatisfactory Participation:  Applicant contacted by phone by the Ammunition Company, LCpl H_ and informed that he had missed drills.  Applicant stated that he did not know about drill even though he stated he had a schedule and said he had no way here.

000611:	Unsatisfactory Participation:  Applicant contacted by phone by the Ammunition Company, LCpl H_ and informed that he had missed drills.  Applicant stated that he had a schedule, and could not get a ride to drill.

000611:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the quarter of July, August, and September because of unauthorized absences.  Applicant not available for signature.

000611:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absences on the following dates:  000504, 000505, 000506, and 000507.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000611:	Commanding Officer, Ammunition Company, notified the Applicant via letter of unsatisfactory drill participation on 000610 and 006011 (certified receipt #Z371753792).  The Applicant’s mother, B_ K_, signed the receipt, not dated.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000611:	Applicant notified via letter (certified receipt #Z371753792 sent on 000612), of intended recommendation for discharge by reason of unsatisfactory participation with a characterization of service of under other than honorable conditions.  The Applicant’s mother, B_ K_, signed the receipt, not dated.  The factual basis for this recommendation was unexcused absences from eleven (11) scheduled drills:  4 May 00 (1), 5 May 00 (2), 6 May 00 (2), 7 May 00 (2), 10 Jun 00 (2) and 11 Jun 00 (2).  Failure to respond after being afforded a reasonable opportunity to consult with counsel constitutes waiver of rights.  The Applicant was directed to respond to the notification by completing and returning the Acknowledgement of Respondent’s Rights within the following time after receiving the notification: two (2) working days if you received it in person; 20 days if you received it by mail.  

000715:	Applicant contacted by phone by the Ammunition Company 1^st Sgt J_ and informed that he had missed 13 drills.  Applicant stated that he could not get a ride, does not have a driver’s license.

000715:	Commanding Officer notified the Applicant of unsatisfactory drill participation on 000715 and 000716, via letter (certified receipt  #Z371753809 sent on 000717).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000715:	Commanding Officer notified the Applicant via letter (certified receipt #Z371753809 sent on 000717) of intent for administrative reduction for unsatisfactory participation in the selected Marine Corps Reserve.   Applicant is encouraged to submit a written statement on his behalf, to include any family hardship, personal hardship (i.e., civilian employment, education, etc.), or medical problems that have precluded his attendance at drills.  

000716:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absences on the following dates:  000610 and 000611.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000719:	Applicant signed receipt and accepted delivery of the certified mail, receipt #Z371753809.

000720:	Counseling:  Advised of deficiencies in performance and conduct (Unauthorized absences on the following dates:  000715 and 000716.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000731:	Administrative Reduction Order for Unsatisfactory Participation in the Selected Marine Corps Reserve.  Applicant is administratively reduced to Private First Class due to unsatisfactory participation, specifically, failure to attend scheduled drills and annual training while a member of the Selected Marine Corps Reserve.  

000811:	Commanding Officer/Inspector-Instructor, Ammunition Company (-), Greenville, recommended to Commander, Marine Forces Reserve (SJA), that the Applicant be discharged with an under other than honorable conditions by reason of unsatisfactory participation in the ready reserve for UNEXCUSED absences from scheduled drills.  Commanding Officer’s comments:  “Private First Class K_ (Applicant) is in an unsatisfactory drill status having missed and not attempted to make up 15 drills.  Private First Class K_ (Applicant) joined the Marine Corps on 15 July 1998 and his unit on 19 December 1998 and has been in an unsatisfactory drill status since 4 May 2000.  Private First Class K_ (Applicant) continues to show contempt towards his contractual obligations to the Marine Corps Reserve.    His unwillingness to make-up missed drills and the unlikelihood of his presence at future drills make him an extreme liability to the morale and success of this unit.  Private First Class K_ (Applicant) has no future mobilization potential.  We mailed his letter of Notification, Acknowledgement of Rights Form and NDRB Form 13 June 2000, it was received and signed for, but SNM did not return it in time indicated.  Private First Class K_ (Applicant) has no potential for future military service, he does not possess a security clearance or have access to classified material.” 

001003:	Commanding Officer, 4^th Supply Battalion, recommended approval of the Commanding Officer, Ammunition Company, recommendation for the Applicant’s administrative discharge.

001031:	Commanding General, 4^th Force Service Support Group, recommended approval of Commanding Officer, Ammunition Company recommendation for the Applicant’s administrative discharge.

010110:	SJA statement on a copy of the Acknowledgement of Rights that the Applicant failed to return the Acknowledgement of Respondent’s Rights sent to the Applicant on 000612, as an enclosure to certified mail #Z371753792.

010129:	SJA review determined the case sufficient in law and fact.

010129:	Commander, Marine Forces Reserve, notified the Commandant of the Marine Corps, that the Applicant will be discharged with under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

010202:	Commanding Officer, Ammunition Company (-), Greenville, letter to Commander, Marine Forces Reserve (SJA).  Applicant was discharged on 2 February 2001 by reason of failure to participate (Reserve not on active duty, board waived) with a characterization of service of Under Other Than Honorable Conditions.

040628:	NDRB documentary record review Docket Number MD04-00166 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010202 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 Applicant contends that he was an outstanding Marine.  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.  During May – June 2000, the Applicant’s service was marred by eleven unexcused absences from scheduled drill with his reserve unit.  On each of the days that the Applicant did not attend drill, his unit called his residence, for a total of 7 times, speaking to him on 4 occasions.  In addition, on 3 occasions, the Applicant’s Commanding Officer notified him of his unsatisfactory drill participation via certified mail, which was received at the Applicant’s residence.  Further, the Applicant received 3 retention warnings, was not recommended for promotion on 2 occasions, and was issued an administrative reduction order to Private First Class for unsatisfactory participation while a member of the Selected Marine Corps Reserve.  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.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  In his testimony the Applicant stated that he was an active member in his church and community, and that he was currently employed.  The Applicant provided three letters of character reference and his fiance made a statement to the Board on his behalf.  While the Board was encouraged by the Applicant’s testimony, the Applicant failed to provide verifiable proof of his post service accomplishments.  As explained to the Applicant in the response from his NDRB documentary discharge review of 20040628, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities, in order for consideration for relief based on post-service conduct.  The Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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