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USMC | DRB | 2002_Marine | MD02-00243
Original file (MD02-00243.rtf) Auto-classification: Denied


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

ex-Pvt, USMCR
Docket No. MD02-00243

Applicant’s Request
The application for discharge review, received 020114, 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 designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020815. 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

 Submitted by DAV:

The evidentiary record reflects that the FSM served in the United States Marine Corp. Reserves from March 8, 1994 to April 17, 1998 with the period of March 8 to July 10, 1994 on active duty for training, basic, at Camp Lejeune, North Carolina. After completion of basic training the FSM was assigned to his Reserve Unit at Ft. Knox, Kentucky.

On the respondents application he notes his sincere regret in the past choice he made with regard to leaving the Marine Corp. Further stating that his decision to quit did not entail any illegal actions, or endanger the security of the Marine Corp., and that the current discharge was unwarranted. In continuance, he notes his desire to upgrade his discharge has increased in view of past events, as he desires to be available if his country needed him.

Service members maybe separated from active service, when they are unqualified for further military service because of unsatisfactory performance. Service members separated for unsatisfactory performance will receive Honorable or General discharge certificates, as warranted by their military records. Instructions are also given that once a service member has been recommended for discharge for unsatisfactory performance, the same procedures are followed as for separations for misconduct. See SECNAVINST or MARCORSEPMAN regarding unsatisfactory performance separations.

We believe this maybe were the impropriety occurred, with the interpretation of the meaning of the regulations. Once a service member is recommended for discharge for unsatisfactory performance, the same procedures are followed for that of misconduct. Administrative separations for misconduct receive an Under Other Than Honorable discharge. Even though the same procedures are to be followed the additional guidelines require the receipt of a Honorable or General, Under Honorable Conditions discharge, for unsatisfactory performance.

In light of this we ask the impropriety be corrected and a discharge upgrade be granted.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board
Under Other Than Honorable Conditions Discharge Certificate (DD FORM 794MC)
Inspector-Instructor, MPCo A(-), HQSVCBn, 4thFSSG ltr to Applicant of Apr 28, 1998
1994 W-2 Wage and Tax Statement
Letter of Employment from Madison County Detention Center dtd Nov 30, 1998
Certificate of Course Completion, American Correctional Association, dtd Dec 1995
 Certificate of Training Completion, Lexington-Fayette Urban County Detention Services dtd Nov 23, 1998
Eastern Kentucky University transcript (Fall 92 - Fall 99)
Record of Promotion (NAVMC 118(5))
Record of Service
Applicant's Criminal History Record (2 pages)
Certificate of Promotion to LCpl, USMC, dtd Dec 1, 1994
Applicant's letter

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: 930417               Date of Discharge: 980427

 Length of Service (years, months, days):

         Active: 00 04 09
         Inactive: 04 08 01

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 13+              AFQT: 51

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 1.3 (7)              Conduct: 1.2 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Rifle Expert Badge

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 :

940315:  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.
950709:  Notification letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training mailed to applicant.

950727:  Applicant's letter acknowledged the personal receipt of the Notification of Separation Proceedings, dated 9 Jul 95, the Acknowledgment of Rights form and the Purpose and Scope of the Naval Discharge Review Board and Board for Corrections of Naval Records form. Applicant elected to waive all rights except the right to obtain copies of all documents supporting the proposed discharge.
951203:  Counseled for unsatisfactory participation in the Selected Marine Corps Reserve (SMCR), specifically unexcused absence from IDT on 951202 and 951203. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960106:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960105 and 960106. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960204:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960203 and 960204. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960303:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960302 and 960303. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960414:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960413 and 960414. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960602:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960531, 960601, and 960602. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960714:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960713 and 960714. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960804:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960803 and 960804. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

960908:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 960907 and 960908. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961108:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 961107 and 961108. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

961208:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 961207 and 961208. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970105:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970104 and 970105. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970201:  SJA review determined insufficient information concerning personal service (hand delivering notification) or affidavit of attempted personal service for mail receipt.

970202:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970201 and 970202. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970215:  Original administrative discharge package, submitted in April 1995, whereby the Commanding Officer recommended discharge under other than honorable conditions by reason of unsatisfactory participation in the SMCR was resubmitted this date. The factual basis for this recommendation was due to the accumulation of 82 unexcused absences from regularly scheduled drills. Commanding Officer’s comments (verbatim): "I believe Lance Corporal S_ (Applicant) does not possess mobilization potential and should be administratively separated from the Marine Corps.”

970302:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970301 and 970302. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970406:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970405 and 970406. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970407:  SJA review determined the case sufficient in law and fact.

970407:  GCMCA [Commander, MarForRes] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the SMCR.

970518:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970516, 970517 and 970518. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970608:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970607 and 970608. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970713:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970712 and 970713. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970803:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970802 and 970803. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970813:  Administratively reduced to rank of Private First Class for unsatisfactory participation and or performance of Reserve Training.

970907:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 970906 and 970907. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970907:  Administratively reduced to rank of Private for unsatisfactory participation and or performance of Reserve Training.

971005:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 971003, 971004, and 971005. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971031:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the SMCR.
971101:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 971031 and 971101. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
971114:  Applicant advised of 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.
971207:  Counseled for unsatisfactory participation in the SMCR, specifically unexcused absence from IDT on 971206 and 971207. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971215:  Commanding Officer recommended the applicant be discharged with an under other than honorable characterization of service for unsatisfactory participation in the SMCR. The factual basis for the separation was the applicant’s excessive number of unexcused absences from regularly scheduled drills.

980413:  SJA review determined the case sufficient in law and fact.

980413:  GCMCA [Commander, MarForRes] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the SMCR.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980427 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. There is no impropriety or inequity in the characterization of the applicant’s discharge. The applicant’s record of unexcused absences from scheduled drills fully warranted separation under other than honorable conditions. The applicant’s lengthy history of drill absences due to the applicant “quitting” the Marine Corps clearly constituted conduct that was a significant departure of that expected of a Marine. The Board found that the applicant’s dissatisfaction with his alleged pay problem did not mitigate his misconduct. Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore 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. 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the applicant is drug free, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.

He 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. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is 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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