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NAVY | DRB | 2004 Marine | MD04-00166
Original file (MD04-00166.rtf) Auto-classification: Denied


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


ex-PVT, USMCR
Docket No. MD04-00166

Applicant’s Request
The application for discharge review was received on 20031030. The Applicant requests the characterization of service received at the time of discharge be changed to Entry Level Separation or Uncharacterized. 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. “To whom it may concern,

In October of 1999 I (J_ L_ K_ (Applicant)) was involved in a car accident, were I was found at fault. I then appeared in court on Nov 9,1999, a month after so that I could pay the fine that I was issued. In April of 2000 the Dept of Motor Vehicles summoned me to surrender my drivers licenses for suspension. After doing so I had no way of getting to drill, because I stayed in Lake City, SC and at the time I attended school in Orangeburg, SC. My unit was located in Greenville, SC. No one from my unit stayed as far down as I did, so there was no one that I could catch a ride with. Before drills I would be contacted by my team leader and by squad leaders, so that they know my situation for documentation. But before any of the above happened I was in very good standings with everyone in my team as well as my unit. I also received my promotion and I was nominated for meritorious mass. In Feb. 2002 I reobtained my drivers licenses. I am a good person and a good marine; I throw my self at the board’s mercy, for I would never discredit the Marine Corp or myself. I ask that you please reconsider and review my discharge for up grade. Because I have been calling different places trying to receive information and help with my discharge status. I’ve filled out different forms, but I never received any information about my records. Because I would be honored to return to the ranks with my fellow Marines in this time of need. Again I say that I would never do something purposely like that to the Marine Corp or myself.

Respectfully,

J_ L. K_ (Applicant) ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
South Carolina Department of Public Safety Notice of Requirement, dtd 10-06-99
 Orangeburg Department of Public Safety, Receipt, dtd 11/09/1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              980715 - 981218  HON
          Inactive: USMCR (J)               981219 - 010202  COG
Period of Service Under Review :
Date of Enlistment: 980715               Date of Discharge: 010202

 Length of Service (years, months, days):
         Active: 00 05 04 (Completion of Active service (USMCR) IADT
          Inactive: 02 01 14
Age at Entry: 17 (Parental Consent)              Years Contracted: 8

Education Level: 12                                 AFQT: 35
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: None found in record.       Conduct: None found in record.  

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 :

980714:  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.
990613:  Counseled for deficiencies in performance and conduct. [The proper procedures for obtaining an excused absence.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000511:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.
000611:  Counseled for deficiencies in performance and conduct. [Unauthorized absences on the following dates: 000504, 000505, 000506 and 000507.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000611:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.
000613:          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.
000716:  Counseled for deficiencies in performance and conduct. [Unauthorized absences on the following dates: 000610 and 000611.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000719:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.
000719:  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)]
000720:  Counseled for deficiencies in performance and conduct. [Unauthorized absences on the following dates: 000715 and 000716.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
000811:  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 the Applicant’s unsatisfactory drill status having missed and not attempted to make up 15 drills.

010129:  GCMCA [Commander, Marine Forces Reserve] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

 020223:  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 20010202 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: 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. 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 15 drills he missed, his failure to attempt to make up the missed drills and his disregard for living up to his contractual obligation. Changing the Applicant's discharge is not warranted and relief would be inappropriate.

Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge. Relief denied.

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 18 Aug 1995 until 31 Aug 2001.

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.

ARFORRES (G-4 Med Navy Yard DC 20374-5023       

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
 .

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