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USMC | DRB | 2000_Marine | MD00-01075
Original file (MD00-01075.rtf) Auto-classification: Denied


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

ex-LCpl, USMCR
Docket No. MD00-01075

Applicant’s Request
The application for discharge review, received 000920, requested that the characterization of service on the discharge be changed to honorable. 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 010502. 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) (administrative discharge board required but waived), authority: MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My discharge was inequitable because my honorable classification was changed to Other Than Honorable, although I didn't have knowledge of a hearing, therefore I couldn't waive my right to a hearing as listed on my records.

2. My discharge was inequitable because I had no knowledge of my present classification until I made application with the Memphis Police Dept. in 1999. Therefore a violation of due process.

3. My discharge was also inequitable because it was expressed to me that I had fulfilled my initial obligation and would be transferred back to the IRR.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 from USMC to IRR
Statement from applicant dated August 22, 2000
Letter from Commander, Marine Forces Reserve dated May 30, 1995
Copy of affidavit of service by mail dated March 24, 1995
Applicant's letter to the Board dtd March 6, 2001 in response to the Board's inquiry

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              880324 - 920323  RELAC -Transferred to IRR
         Inactive: USMCR(J)                870918 - 880323  COG

 Period of Service Under Review :
Date of Entered IRR: 920324     Date of Discharge: 950530

 Length of Service (years, months, days):

         Active: 03 02 07
         Inactive: None

 Age at Entry: 22                          MSO Termination Date : 950917

 Education Level: 12                        AFQT: 38

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF                           Conduct: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: Letter of Appreciation, SSDR w/1 Star, CAR, GCM, NDSM, SASM w/2 Stars, KLM

 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) (administrative discharge board required but waived); authority: MARCORSEPMAN 6213.

 Chronological Listing of Significant Service Events :

920323:  Applicant released from active duty and transferred to Marine Corps Reserve to complete 8 years MSO. (expiration date of 950917) having served 4 years and received a characterization of Honorable.
931001:  Applicant voluntarily accepted orders to reserves with a requirement to perform not less than forty-eight scheduled drills and not less than 14 days on active duty for training.

941128:  Commanding officer notified the applicant of unsatisfactory drill participation via certified letter.
941115:  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.
941115:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [No signature or selection of rights.]

950328:  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 your failure to attend 9 scheduled drills. Commanding officer’s comment’s (verbatim): LCPL____(applicant) has accumulated numerous absences from regularly scheduled drills as evidenced by enclosure (5). Each month a drill news letter was mailed to LCPL____(applicant) announcing the upcoming events. These newsletters were obviously being disregarded. LCPL____(applicant) has been contacted by his Platoon Sergeant and has promised to make up these delinquent drills, but has failed to do so. An attempt to deliver the Notification of Separation Proceedings was made by Sergeant____ on 28 November 1994, but was unsuccessful. This Marine clearly shows that he does not wish to fulfill his obligation to the United States Marine Corps Reserve. Therefore I am recommending that this Marine be separated from the Marine Corps Reserve.

950526:  SJA review determined the case sufficient in law and fact.

950530:  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 950530 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 response to applicant’s issues 1 and 2, the Board found that the applicant’s platoon sergeant attempted to mail the applicant his Notification of Separation proceedings on 28 November 1998 and received no response. The applicant did not honor his obligations to the Marine Corps Reserve and was processed accordingly. There was no violation of due process and no basis for relief.

 In response to applicant’s issue 3, the Board determined that t o permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records nor did the applicant provide any documentation of an automatic transfer from the Marine Corps Reserve to the IRR if the applicant decided he couldn’t make his required drills. The Board will not grant relief concerning this issue.

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, 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 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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