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USMC | DRB | 2002_Marine | MD02-00206
Original file (MD02-00206.rtf) Auto-classification: Denied


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

ex-LCpl, USMCR
Docket No. MD02-00206

Applicant’s Request
The application for discharge review, received 020107, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a traveling panel closest to Jacksonville, FL. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020731. 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, as submitted

1. The undesirable discharge was improper because upon MAC 42 being relocated to Atlanta, GA my wife was diagnosed by Dr. D_ F_ as a high risk pregnancy. As a result she was placed on light duty, which later resulted in a complete bed rest for a considerable portion of her pregnancy. Since my wife was ill a lot I knew that it would be difficult for me to make my weekend duties so I went to my Gunnery Sergeant and explained the situation to him. I asked for any available options considering the circumstances, and at that time as well as on other occasions, I was informed that there was nothing that I could do. As more time passed my wife being out of work began to cause great financial strain on my family, which resulted in the repossession of my vehicle. This made the task of traveling from Florida to Georgia impossible for me. Had I known that a Hardship Discharge was available I would have taken that over a general discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference dated August 2, 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: 920811               Date of Discharge: 990825

 Length of Service (years, months, days):

         Active: 00 08 28
         Inactive: 06 03 17

 Age at Entry: 19                          Years Contracted: 8

 Education Level: 12                        AFQT: 67

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (8)                       Conduct: 4.5 (8)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Commendation

 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 :

920822:  Enlistment contract into the USMCR documented 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.

920908:  Applicant reported for initial tour of active duty for training.

930605:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

990317:  Commanding officer notified the applicant of unsatisfactory drill participation via certified letter.
990317:  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).]
990317:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990518:  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 the failure to participate in regularly scheduled drills.

990706:  SJA review determined the case sufficient in law and fact.

990706:  GCMCA [Commander, Marine Force 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 990825 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).

Issue 1. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine. T he applicant’s service was marred by his failure to participate in the drills of his reserve unit. While he may feel that his wife’s medical problem and lack of an automobile were factors that contributed to his actions, the record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. 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. The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. Legal representation at a personal appearance hearing is highly recommended but not required.

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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