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USMC | DRB | 2000_Marine | MD00-00576
Original file (MD00-00576.rtf) Auto-classification: Denied


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

ex-LCpl, USMCR
Docket No. MD00-00576

Applicant’s Request
The application for discharge review, received 000404, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to reinstate rank & receive pay for final drills attended. 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 001116. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety and inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character and reason for discharge shall change to: HONORABLE/SECRETARIAL PLENARY AUTHORITY, authority: MARCORSEPMAN 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I requested mass and this was ignored and I was told that I'm not allowed at the drill center. Every serviceman or servicewomen is entitled to request mast.

2. Before entering the USMCR, my recruiter & myself cleared with the unit that I'm a college football player and I will miss 3 months every year. My attendance for the entire 6 years was perfect except these 3 months for 4 years this wasn't a problem but as my time on active reserve ended I was discharged dishonorably.

3. I attended several drills in which I was not paid. After driving over an hour to drill, some weekends I would be sent home a few hours into the drill weekend & yet not paid.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated October 22, 1999
Copy of Marine Corps Request Mast application dated October 3, 1997
Statements from applicant dated 970712 and 971108
Copy of consent for release of personal records
Letter to Senator/Congressperson, undated

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: 920331               Date of Discharge: 980120

 Length of Service (years, months, days):

         Active: 00 06 02
         Inactive: 05 09 19

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 68

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (8)                       Conduct: 4.5 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MM, NAM

 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 :

920330:  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.

920518:  Reported to Initial Active Duty for Training.

920815:  Released from Initial Active Duty for Training, having served 2 months 28 days and transferred the Marine Corps Reserve. Received characterization of service as "honorable".

930607:  Reported to Active duty for Training.

930814:  Released from Active Duty for Training, having served 2 months 8 days and transferred the Marine Corps Reserve. Received characterization of service as "honorable".

940517:  Reported to Active Duty.

940612:  Released from Active Duty, having served 26 days and transferred to the Marine Corps Reserve. Received characterization of service as "honorable".

941211:  Counseled for deficiencies in performance and conduct (conduct unbecoming a Marine - using profanity in a public place). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

950813:  Counseled for deficiencies in performance and conduct (conduct unbecoming a Marine - using profanity in a public place and insubordination). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970307:  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.

970309:          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.

970412:  Counseled for deficiencies in performance and conduct (failure to report to remedial PT on 970308). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [APPLICANT UNAVAILABLE FOR SIGNATURE.]

970712:  Counseled for deficiencies in performance and conduct (unsatisfactory participation). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [APPLICANT UNAVAILABLE FOR SIGNATURE.]

970915:  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 unexcused absences on 8Sep95 (1), 9Sep95 (2), 10Sep95 (2), 13Oct95 (1), 14Oct95 (2), 15Oct95 (2), 4Nov95 (2) and 5Nov95 (2).

980120:  SJA review determined the case sufficient in law and fact.

980120:  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 980120 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 and reason for discharge was improper and inequitable (E and F).

 In response to the applicant’s issue 1, the Board found that the applicant’s mast request is a non-decisional issue for the Board. Individuals are entitled to request mast and it is the commanding officer’s prerogative to approve or disapprove these requests. No relief will be granted based on this issue.

The applicant states in issue 2 that “b efore entering the USMCR, my recruiter & myself cleared with the unit that I'm a college football player and I will miss 3 months every year. My attendance for the entire 6 years was perfect except these 3 months for 4 years this wasn't a problem but as my time on active reserve ended I was discharged dishonorably.” The Board found that the applicant was being processed in 1997 for missed drills in September, October and November of 1995. There was a two year lag from the time that the applicant missed his drills in 1995 until the applicant’s command began his discharge processing in 1997. Between 1995 and 1997, the Board found the applicant was in a satisfactory drilling status, had a meritorious mast and received a Navy Achievement medal. The applicant received no counseling or retention warnings during this two year period. Additionally, the applicant had high evaluation marks in proficiency and conduct of 4.5 and 4.5.

Based on the evidence presented from the applicant and the documentation in the applicant’s service record corroborating this information, the Board finds an error in discretion associated with the discharge of the applicant and voted unanimously to upgrade the discharge to HONORABLE and change the reason to Secretarial Plenary Authority. The Board found that the applicant served honorably for almost 6 years, and received excellent evaluations and a Navy Achievement Medal. The Board found that the applicant was not processed in a timely manner for missed drills in 1995 and does not feel the applicant was given the due process normally associated with discharges of similar nature. Full relief to HONORABLE is warranted.

The applicant’s issue 3 is a non-decisional issue for the Board. The Board has no authority to reinstate pay for drills completed.

 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      



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