Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD10-01869

ex-PFC, USMCR

Current Discharge and Applicant’s Request

Application Received:  20100727
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: 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:  19881112	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  8 Years  0 Months
Date of Discharge:  19960120	Highest Rank:  LANCE CORPORAL
Length of Service:
	Inactive:	05  Year(s)  06  Month(s)  07  Day(s)
	Active:	00  Year(s)  09  Month(s)  21  Day(s)
Education Level:  12	AFQT:  65
MOS:  0121
Proficiency/Conduct Marks (# of occasions):  3.9 (10) / 3.9 (10)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations:	NDSM MUC CoA

Periods of UA/CONF:  NONE	NJP:  NONE	SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  6
- 19901201:	For his financial responsibilities.  Specifically his responsibility to properly process all financial affairs prior to departure of this mobilization site.

- 19921114:	For failure to attend ATD.

- 19921206:	For unauthorized absence on 19921205.

- 19930110:	For failure to attend scheduled drills on 19921205 (2).

- 19950205:	For failure to attend scheduled drills on 19940813, 19940814, 19941105, 19950107 and 19950108.

- 19950206:	For failure to inform Platoon Commander of change of phone number, and frost call procedure.

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

1.	Applicant contends his discharge was inequitable, because it was based on two minor incidents of missing “drill weekends” while acting as legal guardian for his troubled sibling with minimal other adverse action.
2.	Post-service.

Decision

Date:  20110808	PERSONAL APPEARANCE HEARING	Location: Washington D.C.	 Representation: NONE

By a vote of 4-1 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’s record of service included six 6105 counseling warnings consisting of the following offenses: Unauthorized absence, failure to attend annual training duty and multiple scheduled drills, and failure to inform the platoon commander of his change of phone number.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  The NDRB did not have the Applicant’s complete administrative separation package since his command’s attempt to notify him of administrative separation processing via certified mail was unsuccessful.  Therefore, the Board presumed regularity in that the Applicant’s command appropriately considered the unsuccessful delivery a waiver of his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant did not provide any evidence to rebut this presumption.

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable, because it was based on two minor incidents of missing reserve drills while acting as legal guardian for his troubled sibling.  Despite a service member’s prior record of service, certain offenses warrant separation from the Marine Corps to maintain proper order and discipline.  According to regulations, when a Reservist with a mandatory participation requirement acquires at least nine unexcused absences, the unit commander can either retain the Reservist and authorize equivalent duty periods to regain satisfactory participation status or initiate separation proceedings.  The Applicant’s command chose to administratively separate him from the Marine Corps after he exceeded the maximum number of unexcused absences allowed within a 12-month period.  In response to this issue, the NDRB found the characterization of the Applicant’s service was equitable and consistent with the characterization of service given others discharged under similar circumstances.  Relief denied.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant provided documentation and testimony pertaining to post-service achievements, suggesting that his post-service conduct warrants consideration for his discharge to be upgraded to General (Under Honorable Conditions).  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service.  The Applicant submitted very little documentary evidence of his post-service conduct.  His testimony and documentation were not sufficient for the Board to effectively evaluate his post-service conduct to determine if they demonstrate his in-service misconduct was an aberration.  The Board determined that the Applicant’s discharge was proper and the characterization was consistent with that given others in similar circumstances.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s testimony, summary of service, service record entries, and discharge process, the Board, by a majority vote of 4 to 1, 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 is not eligible for additional reviews or hearings by the NDRB.  He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, for further review using DD Form 149.

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