Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD10-01936

ex-LCpl, 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:  19950620	Age at Enlistment:  18
Period of Enlistment:  8 Years  0 Months
Date of Discharge:  19980120	Highest Rank:  LANCE CORPORAL
Length of Service:
	Inactive:	02 Year(s)   00  Month(s)   14 Day(s)
	Active	00 Year(s)   06  Month(s)   23 Day(s)
Education Level:  12	AFQT:  35
MOS:  3381
Proficiency/Conduct Marks (# of occasions):  4.5 (3) / 4.5 (3)	Fitness Reports:  NOT APPLICABLE
Awards and Decorations (per DD 214):	Rifle SS, NDSM
Periods of UA/CONF:  NONE

NJP:  NONE	SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1
- 19970601:	For failure of my physical fitness test on 19970504

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

Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge and a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the armed forces.  

Decision

Date:  20111208	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 NDRB 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 did not identify any decisional issues for the NDRB’s consideration; however, the NDRB 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 both equity and propriety.  The Applicant’s record of service did include one 6105 retention-counseling warning regarding his failure to maintain required standards for physical fitness and documented no administrative or punitive punishments.  The Applicant provided no additional documentation for consideration by the NDRB or in rebuttal to the NDRB’s presumption of regularity in the conduct of governmental affairs. 

The Applicant entered military service on an 8-year reservist contract with a waiver to enlistment standards due to his resident immigrant status.  The Applicant signed a contract on 14 June 1995, acknowledging his complete 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 initial active duty training.  The Applicant successfully completed recruit training and his MOS school and was discharged from the Active Duty component on 12 January 1996 for further assignment with his designated Selected Marine Corps Reserve (SMCR) Unit.  Due to failing to attend scheduled drill periods, the command recommended that the Applicant be separated administratively from the SMCR to the Separation Authority - Commander, Marine Forces Reserve.  The Applicant was notified of the command’s proposed actions in regards to his unsatisfactory performance, in writing, via certified U.S. postal carrier to his official home of record after attempts at personal delivery failed.  The letter of notification identified the reason and justification for the command’s proposal to separate the Applicant administratively under other than honorable conditions for his failure to participate in reserve training.  The notification by return signature was receipted for, but the Applicant failed to acknowledge the contents.  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.

(Nondecisional Issue)  The Applicant seeks an upgrade in the characterization of his service at discharge and a change in his reenlistment code (RE-Code) in order to facilitate reenlistment in the armed forces.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment in the armed services; the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

(Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant did not identify any decisional issues related to the equity or propriety of the discharge action for the NDRB’s consideration; however, the NDRB 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 both equity and propriety.  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.  There is credible evidence in the record to suggest the Applicant missed at least 16 days of his required unit training (September through December 1997) with his assigned unit.  After attending his 14-day annual training evolution in August 1997, the Applicant stopped attending drill.  The evidence of record documents the command’s attempts to contact the Applicant in an effort to return him to a satisfactory drilling status; the Applicant did not respond to his unit’s actions.  When notified - in writing - via certified U.S. mail, the Applicant receipted for the notification, but did not respond.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, involved multiple acts or omissions that constituted a significant departure from the conduct expected of a service member; the awarded characterization was appropriate, an upgrade would be inappropriate.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB determined that 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