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USMC | DRB | 2002_Marine | MD02-00563
Original file (MD02-00563.rtf) Auto-classification: Denied


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


ex-LCpl, USMCR
Docket No. MD02-00563

Applicant’s Request
The application for discharge review, received 020311, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021217. 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, as submitted

 1. My discharge is inequitable because it was based on a single incident following honorable service in the Gulf War with no other adverse action, and caused by the breaking of an unwritten agreement I had with my Reserve unit. In late 1990, during the Desert Shield crisis prior to the outbreak of the Gulf War, I volunteered to leave my non-drilling status in the Individual Ready Reserve to join a Marine Reserve tank unit that had been activated for duty in the Persian Gulf. I did this based on an understanding with the Reserve unit that I would be placed back into the IRR upon the unit's completion of it's period of active duty. During the Gulf War that followed, I earned the Combat Action Ribbon, the Southwest Asia Service Ribbon with a battle star, and two Meritorious Unit Commendations. Upon returning to the United States, I was separated from active duty with an honorable discharge. But I was told by the Reserve unit that I would have to continue to drill with that unit. I argued that this was contrary to what I had understood prior to volunteering for active duty, and that I did not want to drill with a unit over 150 miles from my home. I asked to be placed back into the IRR, and stopped attending drill weekends. It was then that I received my Other Than Honorable discharge.
 I therefore request that my discharge be upgraded to either Honorable (which is what I would have received had I been placed back into the IRR) or General/Under Honorable Conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 for active duty period from 901215 to 910516

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
                 USAR                       880227 - 890226  HON
                  USMCR             811014 - 871013  COG
Period of Service Under Review :
Date of Enlistment: 890415               Date of Discharge: 920402

 Length of Service (years, months, days):
         Active: 00 05 02
          Inactive: 02 06 15
Age at Entry: 24                          Years Contracted: 3

 Education Level: 16      (at the time of this enlistment)
AFQT: 95

 Highest Rank: Cpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: NMF*                          Conduct: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR
Days of Unauthorized Absence: None

 *No Marks Found in service record book for this enlistment.


 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 :

890415:  Enlisted USMCR (third enlistment) at MCRC, NavSta Puget Sound, Seattle, WA for a term of 3 years.
901128:  Enlistment contract into the USMCR documents acknowledgement of the
requirement to participate in training prescribed for the Selected Marine Corps Reserve for a period of 1 year, effective 901128 and ending on 911127 and that such training consists of satisfactory participation in at least 48 scheduled drills or training periods and serving on active duty for training for not less than 14 days and failure to do so may result in being processed for involuntary separation.
901130:  Applicant involuntary extended active duty for a period of 90 days.
901215:  Commenced required active duty.

 910430:  Unauthorized absence. Failed to report to I-I Stf, Co B, 4thTkBn, AFRTC, Yakima, WA, not later than 0800, 910430.
910503:  Surrendered at 1000, 910503. Termination of absence report.
910516:  Released from active duty, having completed 5 months, 2 days active duty. Received honorable characterization of service.
910908:  Counseled for deficiencies in performance and conduct [failure to attend units scheduled IDT on 6Sep91 (01), 7SEP91 (02) and 8Sep91 (02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature.]
910917:  Commanding Officer notified the Applicant of unsatisfactory drill participation via certified letter.
911013:  Counseled for deficiencies in performance and conduct [failure to attend units scheduled IDT on 11Oct91 (01), 12Oct91 (02) and 13Oct91 (02)]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Applicant not available for signature.]
911013:  Commanding Officer notified the Applicant of unsatisfactory drill participation via certified letter.

 911106:  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. Letter returned to sender as "Unclaimed."

911127:  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 due to member having joined unit on 28 Nov 90 under a one year SWAT that expires 27 Nov 91. Member currently pending a violation of the UCMJ for unauthorized absence from the period of 0801, 910430 to 1000, 910503. UA was committed while still in an active duty status prior to being deactivated from mobilization. Attempts to contact the member were made but staff was unable to contact him nor has he made any efforts to contact this command.
920220:  SJA reviewed and found case sufficient in law and fact.
920225:  GCMCA [CG, 4 th MARDIV (REIN), FMF, New Orleans, LA] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to failure to participate in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920402 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. The Applicant signed a Separate Written Agreement to Train (SWAT) that documented acknowledgement of the requirement to participate in training prescribed for the Selected Marine Corps Reserve for a period of 1 year, effective 901128 and ending on 911127. This training consisted of satisfactory participation in at least 48 scheduled drills or training periods and the Applicant was notified that failure to drill may result in involuntary separation. The Applicant failed to attend ten consecutive drill periods prior to 911127. There is no record of the Applicant requesting release from his SWAT. Therefore, the Board found the Applicant was properly discharged under other than honorable conditions for misconduct due to unsatisfactory participation in the Ready Reserve. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief not warranted.

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. 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 P1900.16D, 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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