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NAVY | DRB | 2004 Marine | MD04-00202
Original file (MD04-00202.rtf) Auto-classification: Denied


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

ex-LCpl, USMCR
Docket No. MD04-00202

Applicant’s Request
The application for discharge review was received on 20031113. 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: “I was recently married at the time and my wife became pregnant. At the time, my wife was attending school to pursue a career as an LPN. Throughout the whole pregnancy there was alot of complications and she was in and out of the hospital forcing her to drop out of school. My daughter was finally born by cesarean section 3 ½ months premature. She was bourn at 26 weeks and weighed in at 2 lbs. 7 ozs. She stayed at the hospital for 3 months and we were up there constantly tending to her needs. After her release from the hospital, my daughter required extensive therapy, doctor visits and home healthcare. Our lives had to be redirected to meet her needs. The state declared her disabled. Our finances depleted, bouth of us had to work full time in order to pay for the basic necessities. On our time off we had a disabled child that required a lot of attention as well as another child that deserved equal attention. The USMC was important, but so was my family’s well being. My daughters condition stabilized and my son is in school. My life is stable so I can direct my attention to the job I love. USMC.

 9. I believe the record to be in error or unjust in the following particulars:

I was recently married and my wife became pregnant. At the time, my wife was attending school to pursue a career as an LPN. Throughout the entire pregnancy, there were complications and she was in and out of the hospital forcing her to drop out of school. My daughter was finally born by cesarean section 3 1/2 months premature. She was born at 26 weeks and weighed in at 2lbs 7ozs. She stayed in the hospital for 3 months, and we were up there constantly tending to her needs. After her release from the hospital, my daughter required extensive therapy, doctor visits and home health care. Our lives had to be redirected to meet her needs. The state declared her to be disabled.

Our finances depleted, both of us had to work full time in order to pay for the basic necessities. On our time off we had a disabled child that required a lot of attention as well as another child that deserved equal attention. The USMC was important to me, but so was my family’s wellbeing.

 My wife is now an LPN, my daughter’s medical conditions have stabilized and my son is in school. My life is now stable so that I can and will be able to give the Corp my best. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Administrative Discharge ltr, dtd 5 Jun 00
Social Security Administration ltr, dtd September 27, 2000
Hospital Records ico Stuart, Alyssa Kaylee (7 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 970731               Date of Discharge: 000605

 Length of Service (years, months, days):

         Active: 00 06 03                  Inactive: 02 04 01

 Age at Entry: 20                          Years Contracted: 8

Education Level: 12                        AFQT: 39

 Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.2 (1)                       Conduct: 4.3 (1)

 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 :

970818:  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.

970809:  Reported to initial active duty for training (IADT).

980221:  Released from IADT having service 6 months and 3 days of active duty.

980608:  Counseled for deficiencies in performance and conduct. [(Missed drill) 5 – 6 Jun 98] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990110:  Counseled for deficiencies in performance and conduct. [(Missed drill) 8 – 10 Jan 99] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990207:  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)]
990209:  Counseled for deficiencies in performance and conduct. [Unsatisfactory participation] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990207:  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.
990419:  Commanding officer notified the Applicant of unsatisfactory drill participation and the assignment to involuntary unrestricted active duty for 24 months via certified letter.
991204:  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 32 unexcused drills.

000427:  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.

000508:  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 20000605 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 stated his discharge was unjust because “his (life) had to be redirected” even though “(t)he USMC was important to (him).” The Applicant signed a contract on 970818, while enlisting into the USMCR, that acknowledged his understanding 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. He also signed a postal return receipt for a certified letter of intent dated 7 Feb 99 notifying him that he would be administratively separate under other than honorable conditions for the failure to participate in reserve training, specifically scheduled drills for the months of October, November, December 1998, January and February 1999, totaling 22 unexcused absences. Applicant receipted for the 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). Relief denied.

 The Applicant contends his problems were the result of stress caused by his family situation. The NDRB recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. It must be noted that most members of the Marine Corps serve honorably and earn an honorable discharge. In fairness to those service members, commanders and separation authorities are tasked to ensure the undeserving receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. It would be inappropriate to grant an upgrade. 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.

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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