Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. MD10-01075

ex-Pvt, USMCR

Current Discharge and Applicant’s Request

Application Received:  20100323
Characterization of Service Received: COMMARFORRES Ltr - UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge COMMARFORRES Ltr - FAILURE TO PARTICIPATE
Authority for Discharge: MARCORSEPMAN 6213 [FAILURE TO PARTICIPATE]

Applicant’s Request:	Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	NONE		Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19941119	Age at Enlistment:  19
Period of Enlistment:  8 Years  0 Months (6X2 REOP)
Date of Discharge:  19961108	Highest Rank:  PRIVATE FIRST CLASS
Length of Service:  
		Inactive:  01  Year(s)  05  Month(s)  22  Day(s)
		Active:    00  Year(s)  05  Month(s)  29  Day(s)

Education Level:  12	AFQT:  39
MOS:  2531
Proficiency/Conduct Marks (# of occasions):  4.2 (5) / 4.4 (5)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per Service Record): Rifle MM, NDSM, SECNAV LoC

Periods of Unexcused Absence:   Dec 1995 (4 drills); Jan 1996 (4 drills); Mar 1996 (5 drills); Apr 1996 (5 drills); 
May 1996 (5 Drills); Jun 1996 (4 drills); July AT (14 days)   
 					 
NJP:  NONE	SCM:  NONE	SPCM:  NONE	  CC:  NONE

Retention Warning Counseling:  1

- March 1996: For unsatisfactory participation in the Selected Marine Corps Reserve due to 13 unexcused absences in 4 months.  Advised that failure to make-up unexcused drills may result in reduction in rank and administrative separation for Unsatisfactory Participation in the Marine Corps Reserve.   

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:	☒	Service/Medical Record:	☒	Other Records:	☐

Related to Post-Service Period:
	Employment:	☐	Finances:	☐	Education/Training:	☐
	Health/Medical Records:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☐	From/To Representation:	☐	From/To Congress member:	☐

Pertinent Regulation/Law

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 August 1995 until 31 August 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 August 1995, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

Decisional issue: The Applicant contends that he was young and immature at the time of his service and made poor decisions that he believes were mitigated by family medical issues; as such, Applicant seeks equitable relief by a change in his characterization of service at discharge to General (Under Honorable Conditions).

Decision

Date:  20110429	          DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain FAILURE TO PARTICIPATE.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue for the NDRB’s consideration regarding the equity of his characterization of service at discharge.  The Board completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one 6105 retention-counseling warning and no administrative or punitive punishments.  The Applicant provided no additional documentation for consideration by the NDRB or to rebut the presumption of regularity in the conduct of governmental affairs by the NDRB.   

The Applicant entered military service on an 8-year Selected Marine Corps Reserve contract with one waiver to enlistment standards - pre-service drug use, marijuana.  The Applicant signed a contract on 27 February 1995, acknowledging his understanding 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 his initial active duty for training.  He successfully completed recruit training and his MOS school and was discharged from the Active Duty component on 26 August 1995 for further assignment with his designated Selected Marine Corps Reserve Unit as a Field Radio Operator.    

Due to failing to attend 27 consecutive scheduled drill periods, the command administratively reduced the Applicant in rank and further recommended that he be separated administratively from the Marine Corps Reserve to the Separation Authority - Commander, Marine Forces Reserve.  The Applicant was notified of the command’s proposed action in regards to his unsatisfactory performance and was provided an opportunity to elect his rights in regards to separation processing, in writing, via certified U.S. postal carrier to his official home of record address.  The postal return receipt for the certified letter of intent was receipted for by the Applicant.  The letter of notification, dated 10 June 1996, identified the reason and justification for the command’s proposal to discharge the Applicant Under Other Than Honorable Conditions for his failure to participate in obligated reserve training.  The notification by return signature documentation was receipted for; the Applicant failed to reply to acknowledge the contents or elect his rights with regards to separation processing.  The failure to acknowledge official certified mail constitutes acknowledgment and waiver of all rights in accordance with paragraph 6303 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that he was young and immature at the time of his service and made poor decisions that he believes were mitigated by family medical issues and transportation concerns; as such, Applicant seeks equitable relief by a change in his characterization of service at discharge to General (Under Honorable Conditions).

The Applicant was discharged Under Other Than Honorable Conditions due to a deliberate and conscious act to not participate in scheduled drills, despite the efforts the Active Duty and Reserve chain of command made to assist the Applicant.  The Applicant completed his active duty training and, after checking in to his assigned reserve unit, failed to attend any scheduled drills or the unit’s scheduled Annual Training.  The Applicant, and his family and place of employment, were contacted by members of the command, explaining the Applicant’s need to contact the unit.  The Applicant failed to respond to any contact until after missing 27 consecutive drill periods.  When notified of his proposed separation, the Applicant relayed to the command that he wanted to be discharged Under Other Than Honorable Conditions instead of attempting to make up his missed drills and restoring himself to a satisfactory drilling status.  Discharge by Unsatisfactory Participation in the Ready Reserve was warranted.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper.  The NDRB found no error of fact, law, procedure, or discretion that might afford the Applicant relief based on issues of propriety.  As such, it would be inappropriate to grant an upgrade.  Relief denied.

The Applicant contends his discharge was inequitable because he had reasons of hardship and that his extenuating circumstances mitigated his misconduct.  A Marine may request discharge by reason of hardship if the hardship is not temporary, the Marine has made every effort to remedy the situation, separation will eliminate or materially alleviate the condition, and there is no other means of alleviation reasonably available.  The Applicant did not provide sufficient information to the NDRB to demonstrate he requested or pursued a possible discharge on the basis of hardship or that he met the criteria for discharge by reason of hardship.  However, even if the Applicant could show he met the criteria for discharge by reason of hardship, it would neither amount to a justification nor a defense for the Applicant’s own failure to participate in monthly Selected Marine Corps Reserve Training.  

While the Applicant may feel his youth or immaturity was the underlying cause of his misconduct, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.  In the Applicant’s specific case, he successfully completed Recruit Training, Marine Combat Training, and Field Radio Operator School prior to discharge from his initial active duty for training period and joining his drilling reserve unit.  The NDRB determined that the Applicant’s contention of youth and immaturity as mitigation to his misconduct to not be a mitigating factor or a sufficient reason for misconduct.

An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval service.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, did reflect acts or omission that constituted a significant departure from the conduct expected of a service member; as such, the awarded characterization of service was appropriate.  Relief denied.
    
Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain FAILURE TO PARTICIPATE.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent 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 during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water