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USMC | DRB | 1999_Marine | MD99-00986
Original file (MD99-00986.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD99-00986

Applicant’s Request
The application for discharge review, received 990716, requested that the characterization of service on the discharge be changed to honorable and requested an appeal of the reenlistment code. The applicant requested a personal appearance hearing before the Board. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000512. 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/Failure to Participate (Reserve not on active duty) (with board), authority: MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. The applicant was not advised of the purpose and procedures for making application to the Board of Corrections of Naval Records and the Navy Discharge Review Board upon separation.

2. The Undesirable Discharge/Re-enlistment code was inequitable because it was based on incidents, (which the applicant attempted to amend), in 60 months of service with no other adverse action.

3. The Undesirable Discharge/Re-enlistment code is undesirable because the applicant's legitimate civilian service conviction was not used in the defense of discharge proceedings for "Failure to Participate."

4. The applicant justifiably earned the rank of E-4 in accordance with the procedures and regulations of the United States Marine corps, (12 months late), upon review the applicant appeals to be reinstated to the grade of E-4.

5. Per Manual (#P1500.44C) THE UNITED STATES MARINE, BATTLE SKILLS TRAINING/ESSENTIAL SUBJECTS HANDBOOK, INITIAL STAGE GENERAL/MILITARY SUBJECTS, MARINE CORPS INSTITUTE, page I-8, #3
"A Marine may receive a general discharge under other than honorable conditions if his service has been characterized by conduct that was a significant departure from the conduct expected of a Marine.
 This usually involves illegal acts or omission of acts that are characterized by Violence that results in serious bodily injury, breech of special trust, disregard for normal superior-subordinate relationship, drug abuse or trafficking, or endangering the security of Marine Corps. Under these conditions, the discharge is awarded in lieu of courtmartial."
Per the approved Manual, there where no admissible findings that the applicant was found guilty of any of the above mentioned, in accordance with the UCMJ.

6. The applicant's service record/actions, prior to the isolated incident, the following has shown him to be a contributing member of society as he aspires to fulfill a career in the armed forces reserve.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's statement concerning his DD Form 214
Copy of Discharge Authority (CG, 4 TH MAW, FMF) dated 27 Mar 92
Copy of DD Form 214 for period 90-12-27 through 91-06-21
Letter of Recommendation from D.E. H_, GYSGT, USMC dated 20 Aug 99
USMC BATTLE SKILLS TRAINING/ESSENTIAL SUBJECTS HANDBOOK
Applicant's letter to Board for Correction of Naval Records (BCNR) dtd Aug 3, 99
Service Record pages (33)
Letter of Recommendation to BCNR from E.M. H_, SSGT, USMC dtd 6 Aug 99
Group Photographs (2)
Character Reference letter to BCNR from MSGT G.L. D_, MSGT, UCMC dated Aug 16, 1999
Valley Forge Military Academy & Junior College Appointment to Cadet Captain dated 6 Sep 1986
Letter of Recommendation from employer (The Tape Co.) dated Aug 19, 1999
Diploma Certificate from Valley Forge Military Academy dated 30 May 1987
Letter of Recommendation from employer (Western Regional Manage, The Tape Co.) dated Aug 17, 1999
Letter of Recommendation from American Red Cross dated Aug 19, 1999
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: 870131               Date of Discharge: 920402

 Length of Service (years, months, days):

         Active: 00 08 26
         Inactive: 04 05 06

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 40

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.51 (7)             Conduct: 4.45 (7)

 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/Failure to Participate (Reserve not on active duty) (with board); authority: MARCORSEPMAN 6213.

 Chronological Listing of Significant Service Events :

870131:  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.

 870601:  Reported to initial active duty for training.

 870822:  Released from initial active duty for training, having served 2 months, 22 days, characterization of service as "honorable".

890819:  Reported for active training duty (ATD).

890909:  Released from ATD, having served 14 days.

900609:  Reported for ATD.

900624:  Released from ATD, having served 16 days.

901227:  Reported active duty (mobilization).

910531:  Released from active duty, having served 5 months, 4 days, characterization of service as "honorable".

 910609:  Counseled for deficiencies in performance [without authority, failing to go at the time prescribed to your appointed place of duty: 0801, 910531, out processing detail, Hangar #296, MAG-46, MCAS El Toro, Santa Ana, CA]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature.]
910716:  Letter of unsatisfactory participation for drills missed on 910714 mailed PMA this date.

910718:  Applicant responded to the commanding officer advises that he intend to make up all drills missed when he returns in September.

910806:  Letter of unsatisfactory participation for drills missed on 910803 mailed PMA this date.

910826:  Applicant resubmitted his statement of 910718 (that he intended to make up all drills missed) which was never received by the command.

910910:  Letter of unsatisfactory participation for drills missed on 910907 and 910908 mailed PMA this date.

911008:  Letter of unsatisfactory participation for drills missed on 911005 and 911006 mailed PMA this date.

911112:  Letter of unsatisfactory participation for drills missed on 911109 and 911110 mailed PMA this date.

911008:  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. The letter enclosed the "Purpose and Scope of the NDRB and BCNR". Receipt of letter not in record, but the applicant did receive this letter, since he signed the Acknowledgement of Rights to be Exercised or Waived in Separation Proceedings and elected an Admin Board. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]
911018:  Applicant advised of his rights and not having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
911227:  Applicant notified that the discharge board hearing scheduled for 0900, 11 Jan 1992.
920110:  Applicant faxed memo to command indicating that he is unable to seek legal representation and would accept whatever discharge the Commanding Officer and/or Board deems appropriate from the USMC.
920111:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had failed to attend scheduled drills without excuse, that such action warranted separation, and recommended discharge under other than honorable conditions.

920114:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve. Commanding officer’s comments (verbatim): "SNM was notified of the proposed discharge proceedings in accordance with paragraphs 6303 and 6304 of the reference on 18 October 1991. After considering all the evidence and the testimony presented at the board, it is recommended that Corporal (Applicant) be separated from the Selected Marine Corps Reserve. Corporal (Applicant) is not considered a candidate for involuntary assignment to active duty due to his indifference towards the Selective Marine Corps Reserve. This package is forwarded for further action."

920325:  SJA review determined the case sufficient in law and fact.

920327:  GCMCA [CG, 4 TH MAW, FMF] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation and RE-4 reenlistment code.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920402 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).

In the applicant’s issue 1, the Board found that the applicant received the procedures for this Board and the Board of Corrections of Naval Records with his Letter of Intend to Administratively Separate him on 911008. Relief denied.

Issue 2 indicates that the applicant attempted to amend his incidents. The Board found this not to be true. The applicant made no attempt to make up missed drills from the time he received his Letter of Intent to Separate (911008) until the date of his separation (920402), (over 6 months). Relief denied.

Issue 3 is not germane. A civilian conviction has no bearing on the military action taken against the applicant. Relief denied.

In issue 4, the Board found the reduction to be proper. Relied denied.

In issue 5 the applicant is in error. The MCO that established the procedure for discharging unsatisfactory drill participants is the MCRAMM (B), not the Essential Subjects Handbook.

There is nothing in the applicant’s record to indicate that he had a desire to fulfill a career in the armed forces reserves (issue 6). He stopped drilling for over 6 months. This is not the action one would expect from someone wanting to continue a career in the service. Relief denied.
Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817) states that a Marine may be separated for unsatisfactory participation in the Ready Reserve under criteria established in MCO P10014.1.

B. Marine Corps Reserve Administrative Management Manual, (MCRAMM) MCO P10014.1.

C. Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817).

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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