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USMC | DRB | 2001_Marine | MD01-00900
Original file (MD01-00900.rtf) Auto-classification: Denied


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


ex-Pvt, USMCR
Docket No. MD01-00900

Applicant’s Request
The application for discharge review, received 010702, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions or entry level separation or uncharacterized. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation from the American Legion.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020312. After a thorough review of the testimony, records, supporting documents, facts and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the applicant’s service. The Board’s vote was three to two that the character of the discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/ Failure to Participate (Reserve not on active duty)(administrative discharge board required but waived); authority: MARCORSEPMAN 6213.
A personal appearance discharge review was conducted in Washington, D.C. on 02XXXX. 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.
If appropriate add the following:
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.






THIS IS THE CORRECT SHELL FOR DISCHARGE OF A RESERVIST FOR UNSAT PARTICIPATION, EFFECTIVE 27 June 89 UNTIL 17 Aug 95. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818)

NARRATIVE REASON FOR SEPARATION

 For SPD Code HSK1 the Narrative Reason for Separation is “Failure to Participate (Reserve not on active duty) (administrative discharge board required but waived) ”
SPD               English Description

HSK1     Failure to Participate (Reserve not on active duty) (with board)
 HSG1     Failure to Participate (Reserve not on active duty) (board waived)

 Characterization of service is written “HONORABLE”, “ UNDER HONORABLE CONDITIONS (GENERAL)”, “UNDER OTHER THAN HONORABLE CONDITIONS”, or “VOID”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1.       This former member opines that there were extenuating circumstances, medical
 problems as a result of a right knee injury, that contributed to his missed drills.
2. This former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter address to Board of Correction of Naval Records dated June 5, 2001
 One page from applicant's service record
 Letter from Southern State Correctional Facility, personnel officer, dated March 23, 1992 and August 18, 1993
Copy of approved leave of absence
 Copy of final administrative action of the merit system board dated June 23, 1993
Medical documentation (7 pages)
Certificate of completion of State Correction Officer Basis Training, dated December 28, 1989
Letter from applicant dated October 5, 2001
Letter from applicant's mother dated October 4, 2001
Character reference dated September 28, 2001
Character reference dated September 28, 2001
Character/job reference dated March 28, 2001
Letter of recommendation dated March 29, 2001
Character reference dated March 26, 2001
Copies of college grade reports (3)
Copy of letter of appreciation dated April 27, 1998
Copy of real estate license
Copy of temporary real estate license
Copies of performance assessment review dated December 6, 2000, June 15, 2000, June 3, 2001
Correspondence from US Coast Guard, dated 30 March, 2001 and 1 August, 2001

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: 880715               Date of Discharge: 920410

 Length of Service (years, months, days):
         Active: 03 08 26
          Inactive: None
Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 57
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (9)                       Conduct: 4.0 (9)
Military Decorations: None

 Unit/Campaign/Service Awards: MUC
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 :

880715:  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.
880718:  Applicant to required active duty training.

 881201:  Applicant released from active service and transferred to USMCR.

911117   Unit attempted to contact applicant on 921115, 921116 and 921117 in order to notify him of drill. Applicant's father stated that the applicant was on medical leave, not at home.

911121:  Letter of intent to administratively reduce for unsatisfactory performance mailed.

911211:  Applicant administratively reduced.

Undated:         Counseled for deficiencies in performance and conduct. [Missed regular scheduled drills on 10, 11 and 12 January 1992 (5)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for counseling. Letter prepared and mailed this date.

920121:  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)].
920122:  Letter of intent to administratively reduce for unsatisfactory drill participation was sent via certified mail.
920212:  Unit attempted to contact applicant 920210, 920211, and 920212 in order to notify him of drill. The person stated applicant is on medical leave and doesn't know when he will return.
920218:  Applicant reduced to private.

 920303:  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 missing scheduled drills on 15-17Nov91 (5) and 10-12Jan92 (5).

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

920331:  GCMCA [Commanding General, 4 th Marine Division (Rein)] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.
950410:  NDRB documentary record review Docket Number MD95-00276 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920410 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 but not equitable (E and F).
Issues 1. The applicant states, there were extenuating circumstances that contributed to his missed drills. The applicant’s medical records show he sustained a right knee anterior cruciate ligament tear (ACL) on 11/5/91, which required surgery and extensive rehabilitation through 9/15/92. The Board noted the applicant was aware of the procedures to properly notify his reserve unit of his medical condition and to request permission to be excused from drills, as documented by his previous excused drills for medical reasons. However, there is no documentary evidence to show that the applicant executed these procedures prior to missing the reserve drills resulting in his discharge. The Board determined that the applicant’s testimony was compelling enough to demonstrate that he attempted to contact his unit to notify them of his medical condition and request permission to miss upcoming drills. It was the applicant’s responsibility to follow up on his attempts to provide medical documents of his injuries to his unit, which he failed to do. The Board determined there were mitigating circumstances that contributed to the applicant’s missed drills and therefore will grant relief in the form of an upgrade of the discharge characterization to under Honorable conditions (General). The Board will not upgrade the applicant’s discharge to Honorable as a result of his failure to maintain proper communications with his Selected Marine Corps Reserve Unit. Partial relief is therefore granted.
Issue 2. The applicant cites his post-service performance and conduct as the basis for requesting an upgrade to his discharge. The Board determined the applicant’s post-service performance and conduct was insufficient to warrant an upgrade to his discharge characterization. Relief based on this issue is 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 P1001R.1.
B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.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 “ afls10.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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