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

Docket No. MD06-00256

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

FOR OFFICIAL USE ONLY

 ex-Pvt, USMCR
Docket No. MD06-00256

Applicant’s Request

The application for discharge review was received on 20051118.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, 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 20061025.  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 and from an attached letter to the Board:

“My discharge was improper because I complied with the medical procedures for not physically qualified Marines.  In 1998, my Company told me that I was going to be Medically Discharged, but in fact I was Administratively Discharged under Other Than Honorable conditions.

I am currently a candidate for a Special Agent position with the Drug Enforcement Administration (“DEA”).  The DEA has informed me that a job offer is pending the upgrade of my discharge characterization to “Honorable”.”

“Dear Sir or Madam:

My name is R_ T_ (Applicant) and I am writing to request an upgrade of my military discharge status.  It has recently come to my attention that I was unfavorably discharged from the United States Marine Corps Reserves (“Marines”) in 1998.  My discharge was improper because I complied with the medical procedures for not physically qualified Marines yet I was discharged anyway.

I am currently a candidate for a Special Agent position with the Drug Enforcement Administration (“DEA”).  During the final stage of my application process, which consisted of a background check, the DEA notified me that my discharge from the Marines was under Other Than Honorable conditions.  The DEA has informed me that a job offer is pending the upgrade of my discharge characterization to “Honorable”.

As soon as I became aware of my discharge status, I obtained a copy of my Official Military Personnel File (“OMPF’) from Headquarters, U.S. Marine Corps in Quantico, Virginia.  My OMPF shows that I received an Administrative Discharge characterized as Other Than Honorable because of my alleged “Failure to participate” (Enclosure 1).  I would like to take this opportunity to clarify what happened.  I will focus on one particular memo that I believe summarizes my service as interpreted by the Marines.

In the memo addressed to the Commander of the Marine Forces Reserve from the Commanding Officer/Inspector Instructor of Headquarters and Service Company, 1^st Battalion, 25^th Marines (“CO”), the CO wrote the following as the basis for my discharge (Enclosure 2):

“It is recommended that Private T_ (Applicant) be discharged from the Marine Corps Reserve with an under Other Than Honorable Discharge, general basis is unsatisfactory participation, specific basis; unexcused absence from scheduled drills, factual basis unexcused absence from more than nine scheduled drills in a one year period.”

The memo goes on to state that my absences during May 29-31, June 26-28, July 17-19, August 7-9, September 11-13, October 24-25, November 6-7, December 11-13 were unauthorized.

“He has not drilled with Headquarters and Service Company since November of 1997.  He was excused from his scheduled drills in November and December of 1997 and January and February of 1998.  When he failed to provide documentation to substantiate his medical excuse and went in to an unauthorized drill status.”

Although I was absent from drill from May to December 1998, all my absences were authorized.  I notified my Unit of my medical status on a regular basis and also whenever I received written correspondence regarding my duties.  I informed them that I hoped to return to drill as soon as possible.

The memo also states that calls were made in attempt to contact me regarding my drill status on May 29-31, June 26-28, July 17-19, and December 11-13, 1998.  All of these calls were made to (telephone number deleted), which is my Mother’s home phone number.  During this time, my Mother could not afford an answering machine and as is indicated on the enclosed phone logs (Enclosure 3), those calls went unanswered, therefore making it impossible for me to get messages.  Unfortunately, on the dates mentioned above, I was in Amherst, Massachusetts attending the University of Massachusetts as a full-time undergraduate student.  I only returned home for school holidays or when my Mother needed me.  When I wasn’t in class, I worked several different jobs simultaneously to afford school.  I was financially on my own and worked extremely hard to pay for my entire education.

As for the Unsatisfactory Participation Letters that were mentioned in the logs (Enclosure 3), I never received any of them.  I would have called immediately if I had received them.  I did receive drill notices regularly and contacted my Unit immediately.

The CO also wrote that Sergeant R_ called my Mother’s home and spoke to her on numerous occasions trying to contact me.  Sergeant R_ stated that there was even one time when I was home, but refused to speak to him/her.

“Sergeant R_, the SRB clerk for Headquarters and Service Company tried on numerous occasions... to contact Private T_ (Applicant) even spoke to with his mother on four separate occasions one in which Private T_ (Applicant) was home but refused to speak on the phone.”

Much to my regret, I was not aware of any of these calls and had I been there for any of them, I would have been eager to speak with the Sergeant regarding my medical status, especially since mother only speaks Chinese and has very limited understanding of English.  She would not have been able to understand any of those conversations or been capable of telling the Sergeant that I was there and refused to talk to him/her.  In fact, if I had been there, she would have handed me the phone as soon as she heard someone speaking English.

I have always translated all communications in English for my Mother.  Since my father passed away in 1995, my Mother has relied on me even more to translate for her.  Lastly, I provided my platoon Sergeant with my current phone number at school at all times and asked him to contact me there for the reasons I mentioned above.  He told us he kept a list of phone numbers for all the Marines in his platoon in case he needed to contact us.

The CO also wrote in his memo that I was excused from drill November and December of 1997 and January and February of 1998, but not the following months because I did not see the Battalion Corpsman or fax medical documentation.

“Private T_ (Applicant)’s medical condition does not preclude him from faxing medical documentation to his commanding officer, he simply chooses not to.  He has been given ample opportunity to come in and see the battalion corpsman or fax documentation from his doctor but he has not done so.”

I provided sufficient medical documentation for my absences from drill in November and December of 1997 and January and February of 1998 and I continued to do so when requested.  It was easy for me to obtain doctor’s notes regarding my injury because of my constant contact with my doctors and ongoing meeting with my physical.  I would not have neglected to continue to provide medical documentation to my Unit if requested.

The following is background information of my injury and what followed thereafter:

In November of 1996, I attended a two-week drill with the Marines in Fort Drum, New York.  I was assigned to Armory Guard duty, which required me to lift and unload heavy boxes of weapons.  It was during this drill that I re-injured my back.  I did not report this injury to anyone in my chain of command because I did not want to appear weak.  I continued drill and went about my life, but the pain persisted and eventually got worse.

On July 30, 1997, at the urging of my girlfriend, L_ P_, I went to see Dr. J_ S_ at the New England Medical Center (“NEMC”) in Boston, Massachusetts.  He suggested I have a Magnetic Resonance Imaging (“MRI”) scan performed on my back to help diagnose my back pain, which I did.  About a week later, I received a letter from Dr. S_ stating that the MRI confirmed that I had a herniated disk (Enclosure 4).  He referred me to Dr. S_ at NEMC who then referred me to Dr. D_ C_ and Dr. D_ H. O_ who were also at NEMC.

On August 5, 1997, I saw Dr. C_ and Dr. O_ and they both recommended I see a physical therapist to see if he could gradually get my disk back into place.  They strongly advised against surgery because of my young age and said that they would not even operate on me in good-conscience.  Although I was experiencing significant back pain, I continued to attend drills and participate in all the activities assigned to our Unit.  I followed Dr. C_ and Dr. O_ advice and scheduled a meeting with a physical therapist.

I attended drill on October 10, 1997 and while performing my annual Physical Fitness Test (“PFT”), I could not perform sit-ups due to severe pain in my back.  My PFT partner, Lance Corporal T_ R_ (and Armory Guard buddy) informed the Sergeant in charge of the PFT of my herniated disk and my inability to perform sit-ups.  The Sergeant instructed me to stand up right away and to report to the Navy Doctor at the infirmary.

The Navy Doc performed a routine physical test on me and asked me if I had any proof or test results confirming my herniated disk.  I furnished him with the original letter that I received from Dr. S_ regarding my MRI.  The Navy Doc took the letter and made handwritten notes on it.  He kept the original letter and gave me with a copy (Enclosure 4).  He told me he was placing me on Temporarily Not Physically Qualified (“TNPQ”) and to go home, see my doctor, and “heal”.  He strongly encouraged me to have surgery to correct my herniated disk.  He also instructed me to stop drilling immediately.  I informed him that I wanted to stay and drill that weekend and continue to do so in the upcoming drills, but he said no.

After being dismissed by the Navy Doc, I went to see my Company CO Captain, C. K. C_ and my Company First Sergeant (forgot his last name).  I pleaded with them to let me continue drilling, to not place me on TNPQ, and to not dismiss me.  They both told me that I had to go home and “heal”.  They also urged me to have surgery on my back in order to heal faster and to be able to return to drill as soon as possible.  I informed Captain C_ that I had seen Dr. D_ C_ and Dr. D_ H. O_ at NEMC on August 5, 1997 and that they both recommended I see a physical therapist to see if he could gradually get my disk back into place.  I also told Captain C_ that the Doctors said surgery on my back was not advisable because of my young age and that they wouldn’t even operate on me if I wanted.  In response to this information, Captain C_ told me to go home and heal as quickly as possible, so I could come back.

It was during this time I began regular ongoing physical therapy sessions with Dr. D_, a physical therapist at University Health Services (“UHS”) at the University of Massachusetts in Amherst, Massachusetts (Enclosure 5).

While on TNPQ, I made sure to keep my Unit and the Navy Doc up to date on my condition.  Every time I was notified of drill, I called my Unit and informed the Navy Doc of my medical status i.e. that my back was still hurt and I had not had surgery because the doctors would not perform it.  I continued to plead with him to let me return to drill, but he repeatedly said no.  I also regularly spoke on the phone with my Sergeants, Sergeant P_ B_ and Sergeant W_, who were in charge of Lance Corporal R_ at the Armory and me.

In early 1998, after months of pleading with the Navy Doc to let me return to drill, he informed me and someone in my chain of command that I was going to be Medically Discharged from the Marines because I had not healed my back.  The Navy Doc told me that I was going to receive a package of documents and that I was to sign and return them.  Once again, I told him that I did not want to be discharged from the Marines, but he told me it was out of my control and there was nothing I could do.

I received a large package containing many documents with many tabs attached that said, “sign here”.  I signed in all the marked places and sent the package back to my Unit at Camp Edwards in Massachusetts.  I did not read those documents or make copies.  As an Enlisted Marine, I was trained never to question my orders, but to do as I was told, and that is what I did.  I was devastated by the discharge.  Second to the passing of my father, it was the saddest day of my life and I just wanted it to be over.

Despite being forced to end my military career, I was comforted by the fact that I would receive a Medical Discharge and leave under Honorable conditions.  Had I known that I was actually receiving an Administrative Discharge under Other Than Honorable conditions, I absolutely would have questioned the discharge and would not have signed any documents to support it.  During college I juggled a tremendous amount to financially put myself through school while also participating in the Marines in order to contribute to my country.  I would never have accepted a discharge that I knew would negatively affect me for the rest of my life.

Contrary to what has been written in my military records, I do have the dedication, pride, commitment, and discipline required by the United States Marine Corps.  I proved this when I returned to Boot Camp just after my father passed away halfway through my training.  It never crossed my mind not to complete my training to become a Marine.  Being a Marine has been the most significant accomplishment of my life.

As I stated earlier, I am requesting only an upgrade of my discharge from “Other Than Honorable” to “Honorable” in order to obtain a career with the DEA.  I believe I am ideally suited for the Special Agent position with the DEA because of my training as a Marine along with my multi-language skills and cultural background.  I am Chinese and was born in the Spanish speaking country of the Dominican Republic.  I know I would be a great asset to the DEA and our country in our difficult fight against the war on drugs.

I am NOT seeking any Veteran’s benefits, back pay, medical benefits, etc.  I am merely asking you for the opportunity to prove to you that I do indeed have the pride and commitment that it takes to serve my country well.

Thank you for your time and consideration.

Sincerely yours,

(signed)
R_ T_ (Applicant)

Enclosures”

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

“I look back fondly on my experience as a U.S. Marine and I consider it my greatest accomplishment to date.  I would like to use the knowledge, discipline and dedication I learned as a Marine to obtain a career with the DEA and serve my country again.  Once a Marine, always a Marine.”

Documentation

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

Copy of Official Military Personnel File (114 pgs)
Letter from Applicant, dtd December 20, 2005
Character Reference ltr from W_ D_, Boston Police Officer, dtd December 14, 2005
Character Reference ltr from E_ M. B_, dtd December 11, 2005
Character Reference ltr from J_ B_, dtd December 14, 2005
Letter of Reference from M_ B_, dtd December 15, 2005
Letter of Reference from L_ P_, dtd December 19, 2005
Character Reference ltr from J_ Y_, dtd December 19, 2005
Address Change Letter from Applicant, dtd February 13, 2006 

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:  19941024		Date of Discharge:  19990315

Length of Service (years, months, days):

Active:    Unable to determine
	Inactive:  Unable to determine

Time Lost During This Period (days):

	Unauthorized absence:  Unable to determine
	Confinement:		  None

Age at Entry:  19 

Years Contracted:  8 

Education Level:  12				AFQT:  58

Highest Rank:  LCpl				MOS:  0151

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (4)			Conduct:  4.5 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized:  Rifle Expert Badge, National Defense Service Medal, Letter of Appreciation (2).  

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:

950106:	Applicant acknowledges understanding that for 6 years after beginning Initial Active Duty for Training (IADT), Applicant will be a member of a Selected Marine Corps Reserve unit.  Applicant acknowledges that, for those 6 years, satisfactory participation consists of attendance at and satisfactory performance of forty-eight scheduled drills and not less than 14 days of annual training during each year of contract.  Applicant acknowledges understanding that failure to attend drills and training periods as prescribed could result in a less than honorable discharge.  Applicant acknowledges understanding of requirement to keep his commanding officer informed of current address and phone number at all times.

960803:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.  Certifies address on DD214 as 5__ W_ Street, N_, MA.

960804:	Applicant joined to Headquarters and Service Company, 1^st Battalion, 25^th Marine Regiment, Camp Edwards, MA for duty.

961206:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the Jan 97 Prom Quarter of Jan because not enrolled or completed the required MCI’s to advance to the next grade.  Applicant chose not to make a statement.

970509:	Applicant absent from 1 drill, excused.

970510:	Applicant absent from 2 drills, excused.

970511:	Applicant absent from 2 drills, excused.

971005:	Medical Entry, HM1 (name illegible):  22 year old presents with herniated disk as reference by attached letter from civilian doctor.  Applicant is unable to complete PFT.  Applicant is placed TNPQ pending further evaluation and treatment.
Attached letter:  N_ E_ Medical Center, J_ S_, MD, dtd 970807:  Dear Mr. T_ (Applicant), The results from the MRI of your spine are in.  It turns out you do indeed have a herniated disk.  I recommend that you schedule a consultative appointment with Dr. S_ of Neurosurgery here at N_ E_ Medical Center, as soon as possible.  He is a fine physician and can further discuss with you your therapeutic options including the possibility of surgery.  Dr. W_ S_’s number is (telephone number omitted).  Please call me if you have any questions or problems arranging your appointment.  Sincerely, (signed) J_ M_, MD.

971114:	Applicant absent from 1 drill, excused.

971115:	Applicant absent from 2 drills, excused.

971116:	Applicant absent from 2 drills, excused.

971213:	Applicant absent from 2 drills, excused.

971214:	Applicant absent from 2 drills, excused.

980109:	Applicant absent from 1 drill, excused.

980110:	Applicant absent from 2 drills, excused.

980111:	Applicant absent from 2 drills, excused.

980207:	Applicant absent from 2 drills, excused.

980208:	Applicant absent from 2 drills, excused.

980529:	Applicant absent from 1 drill, unexcused.

980530:	Applicant absent from 2 drills, unexcused.

980530:	Sgt M_ attempts to contact Applicant by phone.  No answer.

980503:	PFC H_ attempts to contact Applicant by phone.  No answer.

980531:	Applicant absent from 2 drills, unexcused.

980601:	Commanding Officer, Headquarters & Service Company notifies Applicant by mail that Applicant has been declared an unsatisfactory participant in the Selected Marine Corps Reserve.  Applicant missed 5 drills (980529-980531).   Advised on corrective action and was encouraged to submit a statement on own behalf within 20 days of the date of the letter, which statement should include any hardship or medical problems that may have precluded Applicant’s attendance at scheduled drills.

980601:	Commanding Officer, Headquarters & Service Company notifies Applicant via certified mail (certification #P 059 022 629) of intent for administrative reduction to grade of Private First Class for unsatisfactory participation of reserve training.  Applicant advised of right to submit statement within 20 days of receipt of notice.

980610:	Letter of intent for administrative reduction receipted for this date. 
[Extracted from Service Record Page 11 entry dtd 980601]  

980626:	Applicant absent from 1 drill, unexcused.

980627:	Applicant absent from 2 drills, unexcused.

980628:	Applicant absent from 2 drills, unexcused.

980701:	Applicant failed to respond to letter of intent for administrative reduction, dtd 980601.

980701:	Commanding Officer, Headquarters & Service Company notifies Applicant by mail that Applicant has been declared an unsatisfactory participant in the Selected Marine Corps Reserve.  Applicant missed 5 drills (980626-980628).   Advised on corrective action and was encouraged to submit a statement on own behalf within 20 days of the date of the letter, which statement should include any hardship or medical problems that may have precluded Applicant’s attendance at scheduled drills.

980701:	Commanding Officer, Headquarters & Service Company notifies Applicant via certified mail (certification #P 059 022 654) of intent for administrative reduction to grade of Private for unsatisfactory participation of reserve training.  Applicant advised of right to submit statement within 20 days of receipt of notice.

980717:	Applicant absent from 1 drill, unexcused.

980718:	Applicant absent from 2 drills, unexcused.

980719:	Applicant absent from 2 drills, unexcused.

980719:	Sgt M_ attempts to contact Applicant by phone.  No answer.

980719:	Cpl R_ attempts to contact Applicant by phone.  No answer.

980722:	Commanding Officer, Headquarters & Service Company notified Applicant by mail that he has been declared an unsatisfactory participant in the Selected Marine Corps Reserve.  Applicant missed 5 drills (980717-980719).  Advised on corrective action and was encouraged to submit a statement on own behalf within 20 days of the date of the letter, which statement should include any hardship or medical problems that may have precluded Applicant’s attendance at scheduled drills. 

980628*:	Commanding Officer, Headquarters & Service Company informed Applicant by mail of Administration Reduction to Private for unsatisfactory participation of reserve training in the selected Marine Corps Reserve.
	[*Administrative note:  Date of notice presumed to be administrative error.  Notice clearly refers to reduction to Private.  Applicant notified of intent to reduce to Private on 980701.  Notice of reduction must have occurred after notice of intent to reduce.]

980807:	Applicant absent from 1 drill, unexcused.

980807:	Commanding Officer/Inspector Instructor, Headquarters and Service Company, 1^st Battalion, 25^th Marines, 4^th Marine Division signs Notification of Separation Proceedings advising Applicant of intended recommendation for discharge by reason of unsatisfactory participation in the Marine Corps Reserve with a characterization of service as under other than honorable conditions.  The specific basis for the recommendation was unexcused absence from scheduled drills.  The factual basis for this recommendation was unexcused absence from more than nine scheduled drills in a one year period.  Notification includes Acknowledgement of Rights and BCNR/NDRB information.  Applicant directed to respond in writing to notice not later than 20 days from receipt by completing Acknowledgement of Rights.  Applicant advised that failure to respond within the prescribed time constitutes waiver of rights.

980808:	Applicant absent from 2 drills, unexcused.

980809:	0700, SSgt R_ attempts to contact Applicant by phone.  Leaves message on answering machine.

980809:	1530, SSgt R_ attempts to contact Applicant by phone.  Leaves message on answering machine.

980809:	Applicant absent from 2 drills, unexcused.

980816:	Cpl R_ attempts to personally serve Applicant with Notification, Acknowledgment of Rights and BCNR/NDRB information at 5_ W_ Street, N_, MA.  Attempt unsuccessful, Applicant could not be located there.

980817:	Cpl R_  attempts to contact Applicant by phone.  Speaks with Applicant’s mother.  Applicant refuses to speak on phone.  

980817:	Commanding Officer, Headquarters & Service Company notified Applicant by mail that he has been declared an unsatisfactory participant in the Selected Marine Corps Reserve.  Applicant missed 5 drills (980807-980809).   Advised on corrective action and was encouraged to submit a statement on own behalf within 20 days of the date of the letter, which statement should include any hardship or medical problems that may have precluded Applicant’s attendance at scheduled drills.

980818:	Cpl R_ attempts to contact Applicant by phone.  Leaves message with Applicant’s mother for Applicant to call unit.  Call not returned.

980818:	Cpl R_ mails Notification, Acknowledgment of Rights and BCNR/NDRB information to Applicant at 5_ W_ Street, N_, MA by certified mail, return receipt requested (Certification number P 059 022 700).

980819:	Cpl R_ attempts to contact Applicant by phone.  Leaves message with Applicant’s mother for Applicant to call unit.  Call not returned.

980820:	Cpl R_ attempts to contact Applicant by phone.  Leaves message with Applicant’s mother for Applicant to call unit.  Call not returned.

980824:	Postal Service delivers Certified Article Number P 059 022 700 to Applicant.   

980826:	Return receipt received at command

980911:	Applicant absent from 1 drill, unexcused.

980912:	Applicant absent from 2 drills, unexcused.

980913:	Applicant absent from 2 drills, unexcused.

980913:	Sgt R_ certifies under oath before a commissioned officer, Captain G_, H&S Company Inspector Instructor, previous attempts to serve, personally and by certified mail, Applicant with Notification, Acknowledgment of Rights and BCNR/NDRB information. 

981024:	Applicant absent from 2 drills, unexcused.

981025:	Applicant absent from 2 drills, unexcused.

981106:	Applicant absent from 1 drill, unexcused.

981107:	Applicant absent from 2 drills, unexcused.

981107:	SSgt R_ attempts to contact Applicant by phone.  No answer.

981108:	SSgt R_ attempts to contact Applicant by phone.  Speaks with Applicant.  Told Applicant to “take charge of situation” and advised Applicant to submit medical documentation.

981211:	Applicant absent from 1 drill, unexcused.

981212:	Applicant absent from 2 drills, unexcused.

981213:	Applicant absent from 2 drills, unexcused.

990111:	Sergeant C_ J. R_, annotates command copy of Applicant’s Acknowledgement of Rights form: The Marine (Applicant) did not return the AOR within the time limit indicated on the notification letter. 

990120:	Commanding Officer/Inspector Instructor, Headquarters and Service Company, 1^st Battalion, 25^th Marines, 4^th Marine Division recommended to Commander, Marine Forces Reserve that Applicant be discharged by reason of unsatisfactory participation under other than honorable conditions.  The factual basis for this recommendation was unexcused absence from more than nine scheduled drills in a one year period.  Commanding Officer and Inspector Instructor comments:  “Private T_ (Applicant) joined Headquarters and Service Company on 4 August 1996, his end of mandatory drill date is 21 May 2001.  He has not drilled with Headquarters and Service Company since November of 1997.  He was excused from his scheduled drills in November and December of 1997 and January and February of 1998.  When he failed to provide medical documentation to substantiate his medical excuse and went in to an unauthorized drill status.  Private T_ (Applicant)’s scheduled drills have been as follows: 
29-31 May 1998 - Unauthorized drill status.  Attempted to call him at his home.  Mailed an unsatisfactory participation letter and an intent to reduce letter.  
26-28 June 1998 - Unauthorized drill status.  Mailed an unsatisfactory participation letter and an intent to reduce letter.  
17 - 19 July 1998 - Unauthorized drill status.  Attempted to call him at his home.  Mailed an unsatisfactory participation letter.  
7 - 9 August 1998 - -Unauthorized drill status.  Attempted to call him at his home.  Mailed an unsatisfactory participation letter.
18 August 1998 - Mailed a certified Notification of Separations Proceedings package, enclosures (1) - (3)
11-13 September 1998 - Unauthorized drill status.  
24-25 October 1998 - Unauthorized drill status.  
6, 7 November 1998 - Unauthorized drill status.  SSgt R_ called and talked to Pvt T_ (Applicant).  Pvt T_ (Applicant) told him he has a hurt lower disc in his back.  SSgt R_ told him he needed to take charge of his situation and get his medical documentation into the unit, enclosures (9) and (10).  
11-13 December 1998 - Unauthorized drill status.  Call made to his home - no answer. 
Sergeant R_, the SRB clerk for Headquarters and Service Company tried on numerous occasions, enclosures (9) and (11) to contact Private T_ (Applicant) even spoke with his mother on four separate occasions one in which Private T_ (Applicant) was home but refused to speak on the telephone.  Private T_ (Applicant) is aware of how the Marine Corps operates in a situation where a Marine is not physically qualified and this was reiterated to him on 8 November when he spoke with his platoon sergeant SSgt R_.  He refuses to comply with the these procedures and has consequently been in an unauthorized drill status since May of 1998.  
Private T_ (Applicant)’s alleged medical condition does not preclude him from faxing medical documentation to his commanding officer, he simply chooses not to.  He has been given ample opportunity to come in and see the battalion corpsman or fax documentation from his doctor but he has not done so.  We deem him as having no potential for mobilization or military service.  We strongly recommend that he be administratively discharged from the Marine Corps Reserve and that the characterization of the separation be under Other Than Honorable conditions.” 

990125:	Commanding Officer/Inspector Instructor, 1^st Battalion, 25^th Marine Regiment, forward recommendation, recommending approval.  Commanding Officer and Inspector Instructor comments:  Private T_ (Applicant) has decided not to honor his contract with the United States Marine Corps but (sic) not complying with the medical procedures for not physically qualified Marines.  He has made himself unavailable to talk to on numerous occasions and has decided not to maintain contact with his company.  Private T_ has proven that he does not have the dedication, pride, commitment and discipline required by a United States Marine.  We recommend that he be discharged from the United States Marine Corps Reserve with a discharge under Other Than Honorable conditions so that other, more worthy Marines may be eligible for his billet.

990201:	Commanding Officer, 25^th Marine Regiment forwards recommendation, strongly recommending that Applicant be discharged.

990315:	SJA review determined the case sufficient in law and fact.

990315:	GCMCA, Commander, Marine Forces Reserve approved the Applicant's discharge for Unsatisfactory Participation in the Ready Reserve under other than honorable conditions with a separation code of HSG1 - 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 19990315 by reason of unsatisfactory participation in the Ready Reserve (A, B, C and D) 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 (E and F).  

In the Applicant’s issue that he was improperly discharged because his absences from drills were excused, the Board found credible evidence in the record that the Applicant did not keep his command properly apprised of his medical condition; that Applicant’s absences were not excused by proper authority; and that the Applicant was properly notified of his unsatisfactory performance and the recommendation for administrative separation.  The Board also determined that, even if the Applicant did not receive actual notice of the recommendation for administrative separation as he implies, such lack of notice was due to the Applicant’s failure to keep his command apprised of his current address and phone number as it was his duty to do.  The Applicant’s command followed proper procedures and made every reasonable effort to notify him of his status and afford him opportunity to respond to the pending administrative discharge.  Relief denied.

When the service of a member of the 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 unexcused absences from 37 required drill periods, 2 administrative reductions in rank for unsatisfactory performance, and a continuous pattern of efforts to avoid taking responsibility for his own actions.  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.
       
The Applicant asserts that he is not seeking “any Veteran’s benefits, back pay, medical benefits, etc.”  but does request an upgrade to honorable “in order to obtain a career with the (agency name omitted).”  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The following is provided for the edification of the Applicant.  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.  The Applicant provided six letters of recommendation from family members, friends and former employers as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the unsatisfactory performance that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

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 additional evidence related to this 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.  Paragraph 6303.5 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 1995 until 31 Aug 2001.

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

F.  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