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NAVY | DRB | 2004 Marine | MD04-00046
Original file (MD04-00046.rtf) Auto-classification: Denied


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

ex-PFC, USMCR
Docket No. MD04-00046

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant listed private counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

Applicant’s issues, as stated on the application:

“1. My discharge was inequitable because my civilian job conflicted with the drill weekends.”

“2. I was doing my make up drills without pay and I live more than a hundred miles from Naval Base Roosevelt Roads.”

“3. No one notified me about my discharge until a year latter that I found out. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Completion of required active service (USMCR) IADT –
Member – 4
Copy of DD Form 214 (Completion of required active service (USMCR) IADT –
Member – 1
Second Endorsement on discharge ltr, dtd 9 Feb 2002
Job Certification, dtd 2003-09-19
Applicant’s ltr to OIC Marine Corps Reserve Center, dtd June 2, 2003
Applicant’s ltr, dtd August 23, 2003 (2 pages)
Certificate of no Penal Record, issued 20 de Agosto de 2003
Newspaper articles and advertisements (16 pages)
Certificate of Minor in Criminology from Pontifical Catholic University of Puerto Rico
Bachillerato en Ciencias en Estudios Liberales (Bachelor of Science Degree)
Certificate of Honor from Pontifical Catholic University of Puerto Rico
Honors Certificate in Criminology
Student Association of Criminology membership
Certificate of Commendation, dtd 17 July 1999
Graduate Studies acceptance ltr
Transcript of Graduate level classes completed
Border Patrol Applicant ltr from the Department of Homeland Security,
dtd August 6, 2003 (2 pages)
DEA Application
U. S. Marshals Service notification of Application receipt


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              980616 - 981126  HON
         Inactive: USMCR (J)               980305 - 980615  COG

 Period of Service Under Review :
Date of Enlistment: 980305               Date of Discharge: 020301

 Length of Service (years, months, days):

         Active: 00 05 11 (Completion of Required Active Duty)
         Inactive: 03 06 15

 Age at Entry: 21                          Years Contracted: 8

Education Level: 13 (College)    AFQT: 57

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: No marks found      Conduct: No marks found

 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/UNSAT PARTICIPATION IN READY RESERVE; authority: MARCORSEPMAN 6213.

 Chronological Listing of Significant Service Events :

980615:  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.
991024:  Counseled for deficiencies in performance and conduct. [Unsatisfactory performance by virtue of missing scheduled drills on 22-24 Oct 99 and failing to notify the OIC/I-I with a proper excuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010603:  Counseled for deficiencies in performance and conduct. [Unsatisfactory participant by virtue of missing scheduled drills on 1-3 June (total drill missed 5) and failing to notify the OIC/I-I with a proper excuse.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010702:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.
010731:  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.

010817   Applicant administratively reduced to Private First Class due to unsatisfactory participation while a member of the Selected Marine Corps Reserve.

010822:  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.

011002:  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 and failure to attend regular scheduled inactive duty training.

020209:  GCMCA [Commanding General, 4 th Force Service Support Group] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

020318:  SJA review determined the case sufficient in law and fact.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020301 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).

Issues 1 – 3: The Applicant's other than honorable discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's failure to attend drills is clearly documented. He acknowledged and waived his rights to administrative review by failing to respond to the official certified mail, which he signed for on 31 July 2001. The Applicant was afforded the appropriate due process during the handling of his case. The NDRB found that the aggravating factors in this case outweighed any mitigating and extenuating factors either presented by the Applicant or contained in his record. Aggravating facts noted by the Board were the 27 drills he missed, his failure to attempt to make up the missed drills and his disregard for living up to his contractual obligation. An upgrade of the Applicant's discharge to an honorable characterization is not warranted and relief would be inappropriate.

T here 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 01 Sep 2001 until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 2001, 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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