ex-, USMC

Current Discharge and Applicant’s Request
Application Received:  20110223
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  FAILURE TO PARTICIPATE
Authority for Discharge: MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service
Prior Service:
Inactive:	USMCR   20010519 - 20010617  	Active:	R 20010618 - 20010915 (IIADT - 1) HON
	  	    20010916 - 20020212 (SMCR)			R 20020213 - 20020420 (IIADT - 2) HON
  	    20020421 - 20030112 (SMCR)			    20030113 - 20030702 (PSRC - Iraq) HON

Period of Service Under Review:
Date of Current Enlistment:  20010618	Age at Enlistment:  17
Period of Enlistment:   Years  [6x2 IIADT Contract]
Date of Discharge:  20061130	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  93
MOS:  0331
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  
Awards and Decorations (per DD 214):	Rifle , , AFRM (w/M device), , , , ,  CoC (Individual award)
Periods of UA/CONF:  
Periods of Missed Drills (SMCR): 48 scheduled drills / 28 days scheduled active duty for training 

NJP:  	SCM:  	SPCM:  	    CC:  	Retention Warning Counseling:  

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 
1 September 2001 until Present.

B.  Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C.  Table 6‑1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, 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 issues: (1) Propriety – The Applicant contends the discharge action was improper, because the Applicant was not notified of his pending separation, and as such, was not given the opportunity to contest it.  (2) Equity – The Applicant contends that the characterization of service at discharge was too harsh, because the Applicant’s capacity to serve was debilitated by his combat service and Post-Traumatic Stress Disorder (PTSD).  (3) Equity – The Applicant contends that his otherwise laudable combat service renders the Under Other Than Honorable Conditions characterization of service at discharge inequitable.  

Decision

Date:  20110908	   	   Location: Washington D.C.	  Representation: Swords to Plowshares

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

In accordance with U.S. Code, Title X, Section 1553 (d)(1), the board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 identified three decisional issues for the NDRB’s consideration.  Additionally, 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 equity and propriety.  The Applicant’s record of service did not include any 6105 retention-counseling warnings and documented no administrative or punitive punishments.  The Applicant provided additional documentation for consideration by the NDRB to include academic studies and research regarding PTSD and combat service, the Commandant of the Marine Corps’ Senate Armed Service Committee Testimony (2008), a post-service mental health diagnosis, letters of reference from his mother and friends, and relevant excerpts from his military service and medical records.

The Applicant entered military service on an 8-year reservist contract with no waivers to enlistment at age 17.  As a function of his reserve enlistment, the Applicant was counseled on the requirements of affiliation in the Selected Marine Corps Reserve (SMCR).  As such, the Applicant acknowledged his understanding - in writing - of the requirements expected of him in a written “Statement of Understanding Upon Enlistment in the Marine Corps Reserve Incremental Initial Active Duty for Training (IIADT) Program.”  He signed this document on 18 June 2001, 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.  The Applicant’s service record documents that he successfully completed two periods of active duty for training in order to complete basic recruit training and his MOS school requirements of his contract; he was discharged from each of those periods of active duty for training under Honorable conditions.  The military service record further documents that he is a combat veteran, having served honorably during a combat deployment with an Infantry Battalion in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM from March 2003 to July 2003.  Additionally, the Applicant received the Combat Action Ribbon for his individual actions against opposing enemy forces while deployed.

Due to failing to attend 48 scheduled drill periods and two 14-day scheduled annual active duty training periods (May 2005 - August 2006), the command recommended to the Separation Authority - Commander, Marine Forces Reserve (MARFORRES) - that the Applicant be discharged administratively from the Selected Marine Corps 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 (certified mail #7002 2030 0006 7946 1043) to his official home of record.  The letter of notification, dated 09 August 2006, 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 as required by his contract.  The notification by return signature was receipted for, but the Applicant failed to acknowledge the contents and respond to the command.  The failure to acknowledge official certified mail constitutes acknowledgment and waiver of all rights in accordance with Paragraph 6304 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  The Separation Authority reviewed the command’s recommendations and the supporting documentation and determined that a preponderance of the evidence supported the specific basis for discharge (MARCORSEPMAN - Paragraph 6213, Unsatisfactory Participation in the Selected Marine Corps Reserve).  As such, the Separation Authority approved the discharge; additionally, he determined that the proper and warranted characterization of the Applicant’s service was Under Other Than Honorable Conditions and further directed that he receive an RE-4 Re-entry Code (Not Recommended for Reenlistment).    

:  (Decisional) ()  .  The Applicant contends the discharge action was improper, because the Applicant was not notified of his pending separation, and as such, was not given the opportunity to contest it.  The Applicant failed to attend his scheduled unit 14-day active duty training deployment; moreover, he then continued to absent himself from his unit, without initiating any contact, for the next one-year period, failing to attend 48 scheduled drills and the next scheduled 14-day annual training deployment.  The Applicant effectively ceased all communications with his assigned unit; the unit made multiple attempts, unsuccessfully, to contact the Applicant in order to aid in returning him to a satisfactory drilling status during this period.

In accordance with Paragraph 6304.5 of the MARCORSEPMAN, the following requirements apply to the notice required for administrative discharge when an Other Than Honorable characterization of service at discharge is possible: (a) a reasonable effort should be made to furnish copies of the notice to the member through personal contact by a representative of the command.  A written acknowledgment of the notice shall be obtained; (b) if the member cannot be contacted or refuses to acknowledge receipt of the notice, the notice shall be sent by certified mail, return receipt requested (or by an equivalent form of notice, if such service is not available for delivery by U.S. Mail at an address outside the United States) to the most recent address furnished by the member as an address for receipt or forwarding of official mail.  If the member refuses to acknowledge receipt of notice, the individual who mails the notification shall prepare a Sworn Affidavit of Service by Mail to be inserted on the document side of the member’s service record together with PS Form 3800.  The Applicant’s discharge package documents that throughout the one-year period of his absence from drill, the command’s administrative section and his duty muster work section made multiple attempts to contact the Applicant in person.  Having failed at all efforts to make personal contact, the command then reverted to notification delivery by certified U.S. Postal Mail carrier to the Applicant’s home address of record (certified mail #7002 2030 0006 7946 1043).  The certified mail notification was mailed from the command on 09 August 2006; it was receipted for, by signature, on 23 August 2006.  On 12 September, having received no response to the notification of discharge proceedings, the Command endorsed the discharge action and forwarded it through the chain of command to the Separation Authority.  Commander, MARFORRES administrative separation policy directs that personal notification be attempted for all applicants who reside within a 50-mile radius of the Reserve Center.  On the Affidavit of service, the command specified that they did not attempt personal delivery, but specified in the recommendation letter to the Separation Authority that they did not attempt personal notification because they had already exhausted that option throughout the prior year without success.  As specified in paragraph 6304.5 of the MARCORSEPMAN, a reasonable effort to furnish copies of the notice to the member through personal contact by a representative of the command was made; as such, the command deferred to sending the notice by certified mail, return receipt requested, to the most recent address furnished by the member as an address for receipt or forwarding of official mail (his official documented home of record address).  Based on the evidence of record, and in accordance with the requirements of the MARCORSEPMAN, the NDRB determined no impropriety in the discharge action; as such, relief is not warranted.

:  (Decisional) ()  .  The Applicant contends that the characterization of service at discharge was too harsh, because the Applicant’s capacity to serve was debilitated by his combat service and PTSD.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB found no medical diagnosis in the service record to support the Applicant’s claim; however, the Applicant produced a medical diagnosis by competent civilian medical authority to support his contention of PTSD.  In reviewing the Applicant’s service record, it was noted that he returned from a combat theater in July 2003, and he continued to meet his obligations with his SMCR unit until May 2005 (approximately 2 years).  At that point, the Applicant ceased attending drills; the Applicant did not seek out assistance or communicate any issues to the command.  The record of service documents no proactive steps to address his PTSD concerns, to seek assistance through the numerous programs available for combat veterans, or to request a transfer to the Individual Ready Reserve or to a different billet or unit.  While the Applicant may feel that PTSD was the underlying cause of his misconduct, the record clearly reflects deliberate and willful misconduct; the Applicant had been in the unit for over 3 years and was familiar with requirements, expectations, support mechanisms, and his chain of command.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that his otherwise laudable combat service renders the Under Other Than Honorable Conditions characterization of service at discharge inequitable.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  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 Applicant’s record clearly documents his acceptable conduct while deployed in a combat zone; for this service, he received an Honorable discharge certificate.  The record of service does not document any personal awards received during combat or peacetime service that would constitute “meritorious service.”  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, involved acts or omissions that constituted a significant departure from the conduct expected of a service member; the awarded characterization was appropriate.  Relief denied.

The NDRB found no error of fact, law, procedure, or discretion that might afford the Applicant relief.  The Applicant’s record documents that he is a combat veteran and that he has been diagnosed with PTSD; however, the Applicant was properly discharged under other than honorable conditions due to unsatisfactory participation in the Selected Marine Corps Reserve.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB found that the discharge was both proper and equitable.  It would be inappropriate to grant an upgrade.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  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