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NAVY | DRB | 2004 Marine | MD04-00063
Original file (MD04-00063.rtf) Auto-classification: Denied


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

ex-PVT, USMCR
Docket No. MD04-00063

Applicant’s Request
The application for discharge review was received on 20031008. 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 did not list a representative on his 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:

 “ISSUE 1: REQUEST UPGRADE OF MY DD214 TO HONORABLE SERVICE.

I ENLISTED IN THE USMC RESERVES ON JULY 19, 1999. I TOOK BASIC TRAINING AT PARIS ISLAND, SC. I WAS THEN TRANSERRED TO CAMP GEYER, NC, THEN I WAS TRANSFERRED TO THE USMCR AT PERRYSBURG, OH. I HAD HONORABLE SERVICE UNTIL I GOT TO PERRYSBURG, OH. BEING THE NEW GUY, I WAS NOT ISSUED ALL OF THE GEAR I NEEDED TO ACCOMPLISH OUR MISSION. SUCH AS, I WAS ISSUED A SUMMER SLEEPING BAG AND IN THE WINTER I WAS EXPECTED TO GO TO DRILL AND USE THAT SLEEPING BAG WHICH GOT WET AND COLD AND DID NOT KEEP ME WARM. I WAS NOT ISSUED ANY VORTEX JACKET FOR THE WINTER. AGAIN, BEING THE NEW GUY I WAS MADE TO PICK THE HAIR AND PUBIC HAIRS OUT OF THE SHOWERS WITH MY BARE HANDS. I FELT I WAS BEING PICKED ON, MISTREATED AND WAS NOT ISSUED THE APPROPRIATE GEAR TO ACCOMPLISH OUR MISSION SAFELY. I DID GET SICK MORE THAN ONE TIME AFTER COMING BACK FROM DRILL WEEKENDS IN MICHIGAN FROM EXPOSURE TO THE COLD AND NOT HAVING THE PROPER EQUIPMENT. WHILE AT USMCR PERRYSBURG, OH AND FEELING I WAS BEING MISTREATED I STARTED TO MISS DRILLS. EVENTUALLY, A MARINE CAME TO MY HOUSE AND ASKED FOR ALL MY EQUIPMENT. I LATER RECEIVED A LETTER OF DISMISSAL STATING MY DISCHARGE WAS “OTHER THAN HONORABLE” WITH AN RE-CODE OF 4.

I NOW CONTEND THAT I HAD HONORABLE SERVICE UNTIL I WAS MISTREATED AT THE USMCR, PERRYSBURG. I HAVE BEEN IN LAW ENFORCEMENT SINCE THE SUMMER OF 2001. I THEN WENT TO THE LIMA TECHNICAL COLLEGE POLICE ACADEMY AND GRADUATED IN 2002. I ALSO IN 2002, I COMPLETED MY BASIC CORRECTIONAL ACADEMY. I AM NOW WORKING WITH THE SHELBY COUNTY, OH SHERIFF DEPT. FULL TIME AND THE AUGLAIZE COUNTY, OH SHERIFF DEPT. PART-TIME.

I HAVE ENCLOSED SUPPORTING CHARACTER LETTERS FROM FRIENDS AND PROFESSIONALS. I WISH TO HAVE MY DISCHARGE CHANGED TO HONORABLE SO I CAN ENLIST IN THE AIRFORCE AND PURSUE A CAREER IN MILITARY POLICE OR SECURITY FORCES .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Discharge ltr from CO/I&I 1 st Bn, 24 th MAR dtd 23 Jan 02
Character reference, dtd Sept 3, 2003
Character reference, dtd 18 June 2003
Character reference, dtd September 1, 2003
Job reference, dtd June 20, 2003
Character reference, dtd June 18, 2003
Job reference, dtd 08-08-2003
Completion Certificate from Hancock County Corrections Academy for “Basic Training
for Full service Jail Personnel”
Completion Certificate from Lima Technical College for “Ohio Peace Officer Basic
Training Program”
Certification of 33 College Credits from Lima Technical College in Law Enforcement
Technology
RADAR/LIDAR Operator Certificate
Certificate of Completion of Advanced Detection, Apprehension & Prosecution from
Lima Technical College
Certificate of Achievement for completing Oleoresin Capsicum (Pepper) Spray training
Certificate of Attendance for “HAZMAT Awareness” training

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              990719 - 991223  HON
         Inactive: USMCR (J)               981219 - 990718  COG

 Period of Service Under Review :
Date of Enlistment: 981219               Date of Discharge: 020123

 Length of Service (years, months, days):

         Active: 00 05 05
         Inactive: 02 07 29

 Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 49

 Highest Rank: PFC

 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 :

990719:  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.
001008:  Counseled for deficiencies in performance and conduct. [… lack of initiative, judgment and sound moral character leading to an unsatisfactory participation in the Selected Marine Corps Reserve.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

010206:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.
010212:  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.

010228:  Administratively reduced to Private due to unsatisfactory performance of Reserve training.      

010304:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights by failing to acknowledge official certified mail, which constitutes an acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).

010304:          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 (Applicant’s) clearly established pattern of repetitive absenteeism from regularly scheduled drills by accumulating a total of 15 unexcused absences.

020114:  SJA review determined the case sufficient in law and fact.

020114:  GCMCA [Commanding General, 4 th Marine Division] 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 20020123 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'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 8 February 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 included were the 15 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.

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 P1900.16F, effective 1 September 2001 until Present).

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

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 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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