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USMC | DRB | 2002_Marine | MD02-00638
Original file (MD02-00638.rtf) Auto-classification: Denied


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


ex-Pvt, USMCR
Docket No. MD02-00638

Applicant’s Request
The application for discharge review, received 020408, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116. 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. AFTER RECEIVING AN HONORABLE DISCHARGE ON 881228 FROM ACTIVE DUTY MARINE CORPS FOR WHICH I RECIEVED A GOOD CONDUCT RIBBON, I DECIDED TO GO INTO THE RESERVES. I JOINED THE RESERVES ON 891101. AT THE TIME THEY HAD A PROGRAM FOR PRIOR SERVICE MEMBERS TO RE-ENLIST WITH NO OBLIGATIONS. IF YOU DID NOT WANT TO STAY IN ALL YOU HAD TO DO WAS SAY SO, AND YOU WERE RELEASED FROM YOUR OBLIGATIONS. BY THE TIME MY FIRST DRILL HAD COME AROUND I HAD STARTED A NEW JOB AND WAS INTO A NEW HOUSE. I CALLED THEM AND TOLD THEM I WOULD RESUME IN A COUPLE OF MONTHS, BY THAT TIME I HAD RECIEVED A DISHONORABLE DISCHARGE IN THE MAIL. I VALUE MY TIME IN THE MARINES AND PRIDE MYSELF WITH BEING ONE. I DO NOT WANT MY FOUR YEARS OF OUTSTANDING ACTIVE SERVICE TO BE TARNISHED BY THIS. I DID NOT EVEN DRILL ONCE! I AM RESPECTFULLY ASKING THE BOARD TO REINSTATE ME AS A LCPL TO DATE AS OF 840501, AND TO CHANGE MY DISCHARGE FROM THE RESERVES TO HONORABLE.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                821229 - 830303  COG
          Active: USMC              830304 - 870303  RELAD
          Inactive: USMCR           870304 - 881228  HON

 Period of Service Under Review :
Date of Enlistment: 891101               Date of Discharge: 900523

 Length of Service (years, months, days):
         Active: 00 06 23
          Inactive: None
Age at Entry: 25                          Years Contracted: 2

 Education Level: 12                        AFQT: Unreadable
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: NA                    Conduct: NA

 Military Decorations: None
Unit/Campaign/Service Awards: GCM, Letter of Appreciation

 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 :

891101:  Enlistment contract (Separate Written Agreement to Train) 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 2 years upon completion of initial active duty training.
891210:  Counseling: Advised of deficiency (Failure to attend drill 891208 -891210), notified of corrective actions and assistance available. Unsigned.

 891228:  Letter of intent to administratively reduce for unsatisfactory participation was sent via certified mail on 14 Dec 89, return receipt requested.

900107:  Counseling: Advised of deficiency (Failure to attend drill 6 and 7 Jan 90), notified of corrective actions and assistance available. Unsigned.
900108:  Commanding Officer notified the Applicant of unsatisfactory drill participation via certified letter.
900108:  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).
900112:  Letter of intent to administratively reduce for unsatisfactory participation was sent via certified mail on 12 Jan 90, return receipt requested.
900208:  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 excessive unexcused absences.
900426:  SJA review determined the case sufficient in law and fact.

900503:  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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 900523 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 Board found that the Separate Written Agreement (SWAT) the Applicant signed on 891101 obligated him to serve in the SMCR for two years without the right to a voluntary release of his choice during the two year period. The Applicant’s absences from his scheduled drills were not excused. The Applicant’s discharge characterization accurately reflects his service to his country during the enlistment period reviewed. The discharge was proper and equitable. 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 Board has no authority to reinstate rank. 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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