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USMC | DRB | 1999_Marine | MD99-00307
Original file (MD99-00307.rtf) Auto-classification: Denied


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

ex-PFC, USMC
Docket No. MD99-00307

Applicant’s Request
The application for discharge review, received 981222, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991213. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/UNSAT PARTICIPATION IN READY RESERVE, authority: MARCORSEPMAN 6213.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I was made an example of if you dont go to drill you face the consequences, even though I had doctors tell me not to go to drill.

I recieved a slip from the doctor on base not to attend drill because he beleived that I was not able to drill a 100%.

It wasn't made clear to me that I needed to, every month on drill weekend to show up to the doctor and get a slip for my illness and thats why I recieved the discharge in question.

I beleive I deserve an Honorable discharge, I am becoming a police officer and want a clean record. I recieve VA benefits at this time for the reason I couldn't attend drill.

2. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (release from IADT)
Copy of DD Form 149

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 921201               Date of Discharge: 960401

 Length of Service (years, months, days):

         Active: 00 05 28
         Inactive: 02 10 02

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 73

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.3 (4)                       Conduct: 4.4 (3)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/UNSAT PARTICIPATION IN READY RESERVE; authority: MARCORSEPMAN 6213.

 Chronological Listing of Significant Service Events :

921111:  Enlistment contract into the USMCR documents acknowledgement 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.

930128:  Branch Clinic: Follow up for right eye fx and suture. P: Consulted with HMC about A&P, cont meds, _____ in MRB follow-up Monday in MRP date in RSC, ice to eye at night, PT understands A&P.

930201:  Acute Care Service/Treatment: Follow up fx right eye laceration. P: co-examined, referred to Optometry, applied 3 steri-strips, RTC 5Feb93.

930201:  Optometry: Slipped and fell in shower hitting right ______ 1 week ago, states "not getting any better".

930908:  Acute Care Services/Treatment: Follow up broken zygomatic arch x 9 days and sutural removal X 4 days. A/P: Fracture right zygomatic arch - healing. Now asymponatic. No evidence of eye injury. FD RTC prn.

940311:  Counseled for deficiencies in performance and conduct. [Unexcused absences from regular drills on 940305-940306.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Counseling accomplished by mail.

940522:  Applicant placed on NPQ this date. Applicant signed counseling notice.

940527:  Sick call: A: Probable TMJ syndrome with tension HA's due to zygomatic and fracture NEPTE......in cause of duty while pt eligible for benefits. P: VA referred for case. NPQ drill pending improvement.

940913:  Counseled for deficiencies in performance and conduct. [Unexcused absences from regular drills on 940910 and 940911.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Counseling accomplished by mail.

941001:  Site Corpsman: Not physically qualified for duty, training, mobilization. Reason: fracture jaw, symptoms per PT. Estimated time to full recovery 30 days. Reevaluation 4 Nov 94. Applicant signed certifying receipt of letter.

941001:  Site Commander: Possible RX Jan. NPQ 30 days. Prognosis: poor. Reevaluation 0730, 5Nov94.
         Month 1: UA for Jun/Jul/Aug/Sept. No problems noted on anncert dated 9Apr94.
         Month 2: To see LCDR per Maj's request.
         Month 3: UA (Dec94)
         Month 4: UA (Jan95)
         Month 6: Retention package required.
         Retention package completed and forwarded to S-1 on: (NO DATE)
         Marine considered NPQ at this time.

941001:  Counseled for deficiencies in performance and conduct. [Failure to report for four, thirty (30) day periods to Navy medical while in an NPQ status, failure to notify S-1 of a change in recall phone number and address; failure to demonstrate proper deportment towards NCO's and officers in this unit; failure to report to medical representative in proper uniform during an NPQ screening.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose to make a statement. (Not found in record.)

941020:  Applicant notified of eligible but not recommended for promotion to Cpl for the October 1994 promotion period because of excessive UA. Applicant not available for signature.

950101:          Applicant notified of eligible but not recommended for promotion to Cpl for the October 1994 promotion period because of excessive UA. Applicant not available for signature.

950210:  Counseled for deficiencies in performance and conduct. [Unexcused absence from regular drills on 950203 and 950204, 950205.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 950205: Above counseling accomplished by mail.

950221:  Counseled for deficiencies in performance and conduct. [Unexcused absences from regular drills on 950218 and 950219.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 950219: Above counseling accomplished by mail.

950424:  Counseled for deficiencies in performance and conduct. [Unexcused absences from regular drills on 950401 and 950402.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. 950402: Above counseling accomplished by mail.

950107:  Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail, return receipt requested. Applicant receipted for letter by return signature but failed to acknowledge the contents
950109:          Applicant advised of his rights and having elected not to consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950304:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had excessive unauthorized absence from regularly scheduled drills from 10 September 1994 through 4 December 1994, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950628:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve. The factual basis for this recommendation was excessive unauthorized absence from regularly scheduled drills from 10 September 1994 through 4 December 1994.

960311:  SJA review determined the case sufficient in law and fact.

960311:  GCMCA [Commander, Marine Forces Reserve] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960401 under other than honorable conditions for misconduct due to unsatisfactory participation in the Ready Reserve (A, B, and C). The Board presumed regularity in the conduct of governmental affairs (D). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (E and F).

After reviewing the applicant’s service record, the Board concluded that in fact the applicant should have known that he was required to return in thirty days after being placed in a NPQ status. Furthermore, the applicant was counseled numerous times concerning his UA status and the necessary actions to fix the problem. There was nothing in his service records nor did the applicant provide any documentation indicating that he was not responsible for his actions or was unable to comply with the corrective actions of the counseling. It is the Board’s opinion that the applicant was given every opportunity to comply with the appropriate regulations but failed to do so due to his own neglect. Relief denied.

 The applicant’s representative submitted the following as issue 2: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The applicant provided no documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95, Guide for Characterization of Service.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

F. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, D.C. 20374-5023     


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