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USMC | DRB | 2002_Marine | MD02-00145
Original file (MD02-00145.rtf) Auto-classification: Denied


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


ex-PFC, USMCR
Docket No. MD02-00145

Applicant’s Request
The application for discharge review, received 011026, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority. The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The applicant listed American Legion as his representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 020501. 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 four to one that the character of the discharge shall change and unanimous that the narrative reason of the discharge shall remain the same. 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 documentary discharge review was conducted in Washington, D.C. on XXXXXX. 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 15 Apr 84 until 26 June 89. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, effective 840415)

NARRATIVE REASON FOR SEPARATION

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

HSK1     Failure to participate (Res not on active duty) admin board required
 HSG1     Failure to Participate (Res not on active duty) admin board required but waived 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.       My discharge should be upgraded to honorable due to the fact that I was discharged improperly and inequitably in violation of the Marine Corps Reserves Administrative Management Manual, MCO P1001R.1J, Chap. 3, paragraphs 3104.4a(I) and 3104.4b(2). I had to move 150+ miles away from my duty station and was denied transfer to a closer duty station.
2.       I request that the Board include provisions of SECNAVINST 5420.174c., Encl. (1), Chap. 9.2, as it pertains to the discretion used inissuing my discharge, in assessing the merits of my application. I believe that my discharge was both harsh and unnecessary since I could have easily been transferred to a unit near my new home and attended drills on a regular basis if my request was granted.
3.       Although I understand that each application is assessed on its own merits, I request that the Board consider the reasons for relief granted in NDRB Decisional Document Docket Number MD99-00795. This case very closely parallels my own, if not exactly. It may even be the same command that denied my request for transfer.
4.       I request that the Board include provisions of SECNAVINST 5420.174c., Encl. (1), Chap. 9.3, as it pertains to post-service conduct, in assessing the merits of my application.


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

1)       Letter of Explanation of Issues

2)       Copy of DD 214

3)       Evidence of Reporting My Move to Maryland to Command and Request for Transfer

A)       Letter from Commanding Officer showing that I attended 3/86 drill.
B)       Envelope that contained the letter addressed to me at my new address,

4)       Training Certificates

A)       Certificate of completion of Aviation Ordnanceman Course from Department of the Navy dated 3/20/94
B)       Certificate of completion for Government Motor Vehicle Operators Permit dated 4/19/84

5)       Certification of non-involvement with civil authorities

A)       Fairfax County Police record check dated 10/5/01
B)       Virginia DMV Driving record dated 10/5/01

6)       Employment Records

A)       Performance evaluation from 6/28/01
 B)       Certificate of computer software (Phoenix) training 2/01
 C)       Performance evaluation from 3/02/00
D)       Memo of praise from my manager to the Vice President of sales and the President of our company from 12/3/99
 E)       Letter of appreciation from one of my customers dated 12/9/97
F)       Letter congratulations from our CEO dated 12/3/97
G)       Performance evaluation from 5/27/97
H)       Raise calculation sheet from 5/97
1)       Letter of appreciation from one of my customers dated 10/3/96
J)       Letter of appreciation from one of my customers dated 5/2/96
K)       Letter of appreciation from executive management staff dated 4/30/96
L)       Performance evaluation from 2/96
M)       President's award for special achievement dated 12/15/95
N)       Letter from manager putting me in charge of department in his absence dated 6/16/95
0)       Letter of praise and recommendation for maximum pay increase from my manager dated 5/22/95
P)       Performance evaluation from 5/95
 Q)       Letter of congratulations from the Vice President of Sales dated 2/18/95
 R)       Letter of congratulations and promotion announcement from Operations Manager dated 4/20/94
 S)       Letter of recommendation for promotion from my Sales Manager dated 4/12/94
 T)       Letter of recommendation for promotion from another Sales Manager dated 4/l/94
 U)       Letter of recommendation for promotion from another Sales Manager dated 3/24/94
 V)       Letter of promotion criteria completion from Sales Manager dated 2/14/94
 W)       Letter of congratulations for promotion from Vice President of Sales dated 12/6/93
X)       Letter of recommendation for promotion from Sales Manager dated 11/3/93
 Y)       Performance evaluation dated 9/17/93
 Z)       Performance evaluation from 2/93
 AA) Performance evaluation dated 8/18/92
BB) Performance evaluation dated 5/18/92
7)       Documentation of Community Service

A)       Letter of recommendation and appreciation from Volunteer Fairfax from Volunteers for Change Program Manager dated 1015101
B)       Spreadsheet listing projects I have been involved with
 C)       Spreadsheet listing charitable contributions I have made from 1989 to the present
 D)       Receipts for charitable contributions from 2001
 E)       Receipts for charitable contributions from 2000
F)       Receipts for charitable contributions from 1999
 G)       Receipts for charitable contributions from 1998
 H)       Receipts for charitable contributions from 1997
 1)       Receipts for charitable contributions from 1996
 J)       Receipts for charitable contributions from 1995
K)       Receipts for charitable contributions from 1994
8)       Proof of Financial Responsibility

A)       Copy of Deed of Trust to current home dated 8/14/96
 B)       Copy of Deed of Trust to previous residence dated 3/30/92
 C)       Copy of Deed of Trust to previous residence dated 5/17/88
 D)       Copy of credit report dated 10/10/01
9)       Proof of Family Life

A)       Copy of Marriage Certificate
B)       Copy of Daughter's interim report card

10) NDRB Discharge Review Decisional Document Docket Number
MD99-00795

11)      Addendum, presented at hearing 5/1/02
A)       Updated letter of recommendation, dated 4/26/02
B)       Updated spreadsheet of community service
C)       Letter of appreciation
D)       Daughter’s honor roll certificate
E)       Computer calculated distance between Kensington, MD and NAS Willow Grove
        
PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              830906 -840526   HON
          Inactive: USMCR(J)                830719 - 830905  COG

 Period of Service Under Review :
Date of Enlistment: 840527               Date of Discharge: 861106
Length of Service (years, months, days):

          Active: None
          Inactive: 02 05 10

 Age at Entry: 19                          Years Contracted: 6
Education Level: 12                        AFQT: 65
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.40 (4)             Conduct: 4.4 (4)

 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 :

830621:  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.
860301:  Counseled regarding excessive absences and obligation to attend drills, in the Reserve program.

 860903:  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.

860905:  Commanding officer notified the applicant of unsatisfactory drill participation via certified letter.
xxxxxx:          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.
860926:  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 unsatisfactory participation in the Ready Reserve as evidenced by unexcused absences from scheduled drills on 4-5 Jan 86, 22-33 Feb 86, 5-6 Apr 86, 3-4 May 86, 7-8 Jun 86, and 19-20 Jul 86.

861027:  SJA review determined the case sufficient in law and fact.

 861027:  GCMCA [Commanding General, 4 th Marine Aircraft Wing] 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 861106 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).
Issue 1. The Board found this issue is without merit. The applicant was discharged for failing to participate with his assigned reserve unit. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. The applicant provided no documentation that he was unfairly denied a request for transfer to a closer SMCR unit. While he may feel that the fact that he lived over 150 miles from his Home Training Center (HTC) excused him from drill, the orders governing reservist participation require reservists who live beyond a reasonable distance (100 miles) of their HTC to request a transfer from COMMARFORRES [B]. There is no guarantee such a request will be granted in all cases. Relief denied.
Issue 2. The Board found that the applicant’s discharge was neither harsh nor unnecessary. The applicant is correct by stating that he could have easily been transferred to a unit near his new home. However, it was the applicant’s responsibility to continue to drill with his assigned unit, or seek excused absences prior to his drill dates, until his transfer became effective. The applicant was properly processed for involuntary separation by virtue of his own misconduct as evidenced by his failure to participate with his reserve unit. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. Relief denied.

 Issue 3. Each case reviewed by the NDRB is assessed on its own merits, and a prior case does not serve as a precedent for future cases [D]. The Board noted a significant difference in these two cases. In the earlier case, the Board found corroborating evidence that the applicant was unfairly denied a request for transfer. In this case, the Board found no such corroborating evidence. Relief denied.
Issue 4. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. The applicant provided sufficient documentation to warrant an upgrade to his discharge to Under Honorable Conditions (General). Therefore partial relief is granted.

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.1J.

 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 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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