Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. MD12-00676

ex-LCPL, USMC

Current Discharge and Applicant’s Request

Application Received:  20120130
Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: UNSATISFACTORY PERFORMANCE
Authority for Discharge: MARCORSEPMAN 6213 [FAILURE TO PARTICIPATE]

Applicant’s Request:	Characterization change to: HONORABLE
	Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20010810 - 20010903  COG	Active:	20010904 - 20050903 (Hon) (CRAS/MBK1/RE-1A)

Period of Service Under Review:
Date of Current Contractual Obligation:  20050904 (IRR - MOBCOM)	      Age at Obligation:  22
Period of Required Inactive Duty Service:  4 Years  0 Months
Date of Discharge:  20080825	                Highest Rank:  CORPORAL
Length of Inactive Duty Service Period:  02  Year(s)  11  Month(s)  22  Day(s)
Education Level:  12	AFQT:  64
MOS:  3051
Proficiency/Conduct Marks (# of occasions):  4.4 (NFIR) / 4.4 (NFIR)	Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle SS, Pistol MM, GCM, GWOTEM (OIF I-Kuwait), GWOTSM, SSDR, NDSM, Cert Comm, Meritorious Mast

NJP:  NONE	SCM:  NONE	SPCM:  NONE	  CC:  NONE	Retention Warning Counseling:  NONE

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: The Applicant contends that his discharge action was inequitable: He left active duty with an Honorable discharge after four years of honest and faithful service - to include overseas service in support of Operation Iraqi Freedom - only to receive an Under Other Than Honorable Conditions discharge notification, three years later, for failing to keep the Mobilization Command (MOBCOM) aware of changes to his address and phone number.

Decision

Date:  20120313	         DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: NONE

By a vote of 5-0 the Characterization shall change to HONORABLE.
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

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 identified one decisional issue related to the equity of his discharge action for the NDRB’s consideration; additionally, the NDRB conducted 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 entered military service at age 18 on a eight year Reserve Enlistment contract as a contract E-2/Private First Class; he further elected to serve his initial four years of that contractual obligation on active duty.  His enlistment reflects an Open Contract enlistment program agreement; as such, upon completion of basic recruit training, he was trained in the military occupational specialty of Warehouseman in support of the Service’s needs.  The Applicant’s enlistment record reflects entry into military service without any waivers to enlistment and induction standards.  The Applicant completed his four-year active duty enlistment period.  Having chosen not to reenlist for continued active duty service, he was discharged with an Honorable characterization of his service for completion of his required active duty service period.  The Applicant received a preferred reenlistment recommendation (RE-1A) upon his discharge.  Additionally, during the Applicant’s enlistment, he completed a deployment to Kuwait with the Marine Corps Logistics Command, supporting Operation IRAQI FREEDOM -I (OIF-I).  A standard DD Form 214 (Certificate of Release or Discharge from Active Duty) was issued at the time of discharge, properly reflecting the above information.  During his active duty period of service, the Applicant’s overall Performance and Conduct evaluation average was 4.4 and 4.4.  The Applicant was awarded the Marine Corps Good Conduct Medal during his active duty enlistment period.  Having completed his active duty contractual commitment, the Applicant was discharged from the Active Duty Component and was transferred to an inactive duty status with the Marine Corps MOBCOM as a member of the Individual Ready Reserve (IRR).  This inactive period of duty was in fulfillment of the remaining four years of his eight-year enlistment contract.

(Decisional) (Propriety/Equity)  RELIEF WARRANTED.  The Applicant contends that his discharge action was inequitable.  The Applicant did not identify any issues related to the propriety of his discharge, however, the NDRB conducted a detailed review of the Applicant’s record of service and the discharge process to ensure to ensure the discharge met the pertinent standards of propriety.  The Applicant was separated in accordance with paragraph 6213 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) due to Unsatisfactory Participation in the Ready Reserve.  In accordance with paragraph 6213, a Reservist may be termed an unsatisfactory participant when he fails to keep the Commander,  MCRSC (now named MOBCOM) informed of his current mailing address and telephone number.  Block 18 of the Applicant’s DD Form 214 specifically reiterates this requirement and provides the contact information necessary to complete the requirement.  Due to failing to update his phone number and address with the MOBCOM, the Command recommended that the Applicant be separated administratively from the IRR.  The Applicant was notified of the proposed action in regards to his unsatisfactory performance - in writing - via certified U.S. postal carrier to his official home of record.  The notification by return signature was returned, undeliverable.  The NDRB found no error in fact, law, or procedure that would afford the Applicant proprietary relief; the Applicant was properly discharged due to unsatisfactory participation in the Ready Reserve.
(Equity)  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 reviews each discharge action on a case-by-case basis.  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.  However, 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 failed to update the Mobilization Command of his current address and phone number.  However, there is no evidence in the record that the Mobilization Command attempted to locate the Marine before taking the action to separate him with a negative discharge characterization of service and reducing him in rank to E-3/Lance Corporal.  In taking this discharge action, the Applicant was substantially and negatively affected; he is now being deprived of his earned rank and virtually all earned combat veterans benefits.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no technical impropriety in the discharge action, but did discern an inequity in the characterization of the Applicant’s service.  The NDRB voted unanimously to upgrade and restore the characterization of service at discharge to Honorable. 

The Applicant’s current discharge document reflects a narrative reason for discharge of “Unsatisfactory Performance of Duties.”  This is contrary to his honorable combat service while on active duty and substantially and negatively affects the Applicant.  The NDRB determined that the discharge action taken was inequitable; as such, in order to repair the negative effect of the discharge action already taken, a change to the narrative reason for separation is warranted.  In cases where no other reasons for separation as set forth in the MARCORSEPMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  Given the inequity of the discharge action, and since there is no longer any other narrative reason for separation that accurately describes why the Applicant was separated, the NDRB determined the narrative reason for the Applicant’s discharge shall be Secretarial Authority.

The Applicant is advised that any request to address restoration of his rank and pay grade, or a change in his reenlistment code, is the specific purview of the Board for Correction of Naval Records (BCNR).  The Applicant may petition the BCNR using a standard DD Form 149 regarding these issues.  When requesting a change, the Applicant should provide as much documentation as possible to support his specific request for change.  The address is: Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  
 
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 but not equitable.  Therefore, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.  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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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