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USMC | DRB | 1999_Marine | MD99-00988
Original file (MD99-00988.rtf) Auto-classification: Denied


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

ex-PFC, USMCR
Docket No. MD99-00988

Applicant’s Request
The application for discharge review, received 990716, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000616. 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 3-2 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) (administrative discharge board required but waived), authority: MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My other than honorable discharge was inequitable because it was based on one isolated incident in 5 1/2 years of service with only one other adverse action

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated June 25, 1999
Copy of certificate dated September 25, 1994
Copy of certificate of graduation dated September 25, 1994
Copy of certificate of appreciation dated December 16, 1994
Copy of Degree of Bachelor of Arts dated January 4, 1993
Character reference dated December 13, 1991
Three pages from applicant's service record
Copy of Degree of Master of Arts dated January 8, 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: 820730               Date of Discharge: 880121

 Length of Service (years, months, days):

         Active: 00 09 20
         Inactive: 04 08 02

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 61

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (9)                       Conduct: 3.9 (9)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Failure to participate (Res not on active duty) admin discharge board required but waived; authority: MARCORSEPMAN 6213.

 Chronological Listing of Significant Service Events :

820730:  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.

830131:  Joined for initial tour of active duty.

831120:  Released from initial tour of active duty.

 840415:  NJP for violation of UCMJ, Article 112A:
 Specification: Wrongfully possess some quantity of cocaine which showed positive through urinalysis testing reported by NAV HOSP Oakland, CA msg R 201603Z Feb 84.
Awarded forfeiture of $16.00 per month for 1 month, reduction to Pvt. Not appealed.
850801:  Applicant informed eligible but not recommended for promotion to Lance Corporal because of unsatisfactory attendance.
860420:  Counseled for deficiencies in performance and conduct. [Failed to report to designated work area.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860517:  Applicant informed eligible but not recommended for promotion to Lance Corporal for the month of September 85 through May 86 because of unsatisfactory drills for the months of September 84, October 84, and July 85.

860817:  Applicant assigned to weight control program. Present weight: 204. Goal weight: 180 to be met no later than 17Jan88.

8608XX:  Counseled for deficiencies in performance and conduct. [Overweight.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

860907:  Applicant informed eligible but not recommended for promotion to Lance Corporal because of unsatisfactory military appearance.

861108:  Counseled for deficiencies in performance and conduct. [Unsatisfactory participation in the Ready Reserve by virtue of unexcused absence from scheduled drills.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

861213:  Counseled for deficiencies in performance and conduct. [Failure to meet USMC weight/military appearance standards. Assigned to weight control/military appearance program on 861213 with a present weight of 198. Goal weight 192 to be met no later than 870613. Specific reason for counseling.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870221:  Applicant informed eligible but not recommended for promotion to Lance Corporal for the month of February because of failure to meet the required weight/military appearance standards.

870321:  Applicant informed eligible but not recommended for promotion to Lance Corporal for the month of March because of failure to meet the required weight/military appearance standards.

870425:  Applicant informed eligible but not recommended for promotion to Lance Corporal for the month of April because of failure to meet the required weight/military appearance standards.

871017:  Commanding officer notified the applicant of unsatisfactory drill participation via certified letter.
871022:  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. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]
871022:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

871212:  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 unexcused absence from scheduled drills on 18-19Jul87, 22-23Aug87, and 19-20Sep87.

871228:  SJA review determined the case sufficient in law and fact.

880104:  GCMCA [Commanding General, 4 th Marine Aircraft Wing, FMF] 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 880121 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).

The applicant’s issue states that the discharge was inequitable because it was based on one isolated incident in 5 ½ years of service with one other adverse action. Regulations specifically authorize an other than honorable discharge based on the nature of a single offense committed, provided it could result in a punitive discharge at court martial. The Board found that both of the offenses the applicant committed by the applicant during his enlistment were serious enough to warrant separation and a discharge characterization of other than honorable. He was, however, only processed for unsatisfactory participation in the USMCR. Relief is not warranted.

 The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that 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, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, effective 15 Apr 84 until 26 Jun 89) states that a Marine may be separated for unsatisfactory participation in the Ready Reserve under criteria established in MCO P1001R.1E.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1E.

C. Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, effective 840415 until 890626).

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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