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USMC | DRB | 2000_Marine | MD00-00911
Original file (MD00-00911.rtf) Auto-classification: Denied


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


ex-PFC, USMCR
Docket No. MD00-00911

Applicant’s Request
The application for discharge review, received 000712, 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 010329. 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 (applicant), (SSN deleted), feel that my current discharge status is unjust due to the reason of my departure from the Marine Corps.

 After my active duty in May of 95, 1 started drilling with my reserve unit. Two months later, I was in a car accident in which I suffered trauma to the head. I was thrown through a side window of a truck and cut an artery on the left side of my head. At that time, I was taken to the hospital where I was treated and released.

A few months later, I started receiving severe, sharp migraines. I then saw a neurologist who felt that the headaches were from the accident earlier that year. The Doctor recommended medications and restricted me from doing anything that dealt with heights (climbing). I was then re-evaluated about a month later where the Doctor recommended no combat duty. I then saw the battalion surgeon who disregarded the Doctors' recommendations and the pains that I was receiving.

After my doctors evaluation I did not actively drill with my unit. I assumed incorrectly, that because the doctor advised me not to do anything with height involved, and later this included not participating in combat duty, that I did not have to drill. I was new to the Reserves when my accident happened and did not fully comprehend the severity of missing a drill with a doctor's recommendation.

My next step was to talk to the Admin CO (I cannot remember his name), he instructed me to get all of my signatures, turn in my gear, and checkout. To my knowledge, from taking these steps, I was being discharged with a status of General Under Honorable Conditions.

Months passed by and I never received my final discharge papers. Finally in 1998, when I requested a copy of my military records for a career change, I noticed my discharge status as Other than Honorable. I realize now that I could have handled my situation differently. I have learned from my mistakes. From being a model Marine up to the time of my car accident and from receiving an honorable status from active duty to the reserves, I respectfully request my status be upgraded to Honorable Conditions.

During basic training, I was selected as squad leader and I received an average of 94% during my MOS schooling. I also did not receive any disciplinary actions throughout my time in the Marines.

I appreciate the opportunity to present my appeal.

Sincerely,
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (5 copies)
Letter from a doctor dated September 30, 1996 (4 copies)
 Letter from a doctor dated July 25, 1996 (4 copies)
 Copy of clinic record notes (4 pages) (4 copies)
 Copy of statement of service dated June 23, 1999 (2 copies)
 Seventy-one pages from applicant' service record (some duplicates)
Copy of certificate for Staffer of the Month from Giant dated October 1999
 Statement from applicant dated November 21, 2000

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: 940917               Date of Discharge: 970313

 Length of Service (years, months, days):

         Active: 00 06 12
         Inactive: 01 11 15

 Age at Entry: 18                          Years Contracted: 8
Education Level: 12                        AFQT: 56

 Highest Rank: PFC
Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.6 (2)                       Conduct: 4.6 (2)

 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 :

940917:  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.
941128:  Applicant reported for initial tour of active duty for training.

 950525:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

960602:  Counseled for deficiencies in performance and conduct. [Unexcused absences classifying me as an unsatisfactory participant in the selected Marine Corps Reserve.] I was advised that within 5 working days after acknowledgement of this entry a written rebuttal will be filed on the document side of the service record. I chose (to) (not to) make such a statement. Applicant not available for signature.

960714:  Counseled for deficiencies in performance and conduct. [Unexcused absences classifying me as an unsatisfactory participant in the selected Marine Corps Reserve.] I was advised that within 5 working days after acknowledgement of this entry a written rebuttal will be filed on the document side of the service record. I chose (to) (not to) make such a statement. Applicant not available for signature.

961006:  Commanding officer notified the applicant of unsatisfactory drill participation via certified letter.
961006:  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)]

961006:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
961024:  Applicant informed eligible but not recommended for promotion to Cpl for the 1 st quarter, (month of Jan97) because of unsatisfactory drills. I was advised that within 5 working days after acknowledgement of this entry a written rebuttal will be filed on the document side of the service record. I chose (to) (not to) make such a statement. Applicant not available for signature.

961102:  Counseled for deficiencies in performance and conduct. [Unexcused absences classifying me as an unsatisfactory participant in the selected Marine Corps Reserve.] I was advised that within 5 working days after acknowledgement of this entry a written rebuttal will be filed on the document side of the service record. I chose (to) (not to) make such a statement. Applicant not available for signature.

961208:  Counseled for deficiencies in performance and conduct. [Unexcused absences classifying me as an unsatisfactory participant in the selected Marine Corps Reserve.] I was advised that within 5 working days after acknowledgement of this entry a written rebuttal will be filed on the document side of the service record. I chose (to) (not to) make such a statement. Applicant not available for signature.

961208:  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 14 unexcused absences from scheduled drills. You have also failed to make an attempt to reschedule or make up the drills.

970129:  SJA review determined the case sufficient in law and fact. [If discharged UOTHC]

970129:  GCMCA [Commander, Marine Force Reserves] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.
970130:  Applicant informed eligible but not recommended for promotion to Lance Corporal for the month of February 1997 because of unsat drills.

970302:  Applicant informed eligible but not recommended for promotion to Lance Corporal for the month of April because of unsatisfactory participation, pending discharge. Not available for signature.

970302:  Counseled for deficiencies in performance and conduct. [Unexcused absences classifying me as an unsatisfactory participant in the selected Marine Corps Reserve.] I was advised that within 5 working days after acknowledgement of this entry a written rebuttal will be filed on the document side of the service record. I chose (to) (not to) make such a statement. Applicant not available for signature.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970313 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 considering the applicant’s issue 1, the Board found he signed the enlistment contract, fully explaining his total reserve obligation of 8 years, including his reserve drill requirements. In evaluating the applicant’s alleged medical condition subsequent to a motor vehicle accident, the board informs the applicant that a medical diagnosis, whether proper or improper is not an issue upon which the NDRB can grant relief. When reviewing a discharge, the NDRB does consider the extent to which a medical problem might effect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB does not consider the circumstances surrounding the applicant’s stated condition, the implied diagnosis, nor the medical treatment given to the applicant to be of sufficient nature to exculpate the applicant’s misconduct. In fact, the NDRB sees no connection between the applicant’s misconduct and his medical condition. The applicant’s misconduct began before his medical condition and continued after his condition was resolved. Relief is not warranted.

The applicant’s assertion, “I assumed incorrectly, that because the doctor advised me not to do anything with height involved, and later this included not participating in combat duty, that I did not have to drill. I …did not fully comprehend the severity of missing a drill with a doctor’s recommendation.” is not supported by the record. In fact, there is a well-documented history of the 4 th Combat Engineer Battalion Commanding Officer’s counseling to the applicant on the consequences of missing scheduled drills. There is a record of Certified U.S. Mail deliveries from the Commanding Officer to the applicant’s home of record, with signatures of receipt. There is the Memorandum of Not Physically Qualified procedures, signed in the applicant’s own hand on 960207, stipulating his understanding that failure to present a doctor’s status report one week prior to each scheduled drill weekend will result in an other than honorable discharge. The applicant signed his acknowledgement that if discharged under other than honorable conditions, for unsatisfactory participation in reserve drills, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D). 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. 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 but not mandatory.


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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