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NAVY | DRB | 2004 Marine | MD04-00757
Original file (MD04-00757.rtf) Auto-classification: Denied


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

ex-LCpl, USMCR
Docket No. MD04-00757

Applicant’s Request
The application for discharge review was received on 20040330. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests 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 20041008. 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. “During the time leading up to the discharge, I was enduring several hard ships. While a member of MAG-41, the unit I was attached to, I had no formal chain of Command to address my issues to. In addition, I sought help from the Base Chaplain and Navy medical, but as a reservist, was unassisted. I attempted to dispute the discharge and sent in statements but had no reply.

Honestly, I am a very competent reliable, and honorable man. I fell into a situation where I was forced to choose between the military and my life. No matter how hard I tried, I could not get the military to understand my dilemma. My actions while irresponsible, were not malicious.

I am only seeking this change in order that I might serve in the military again. My only desire is to serve my country and not be looked at as criminal.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, (4 pages) dtd January 28, 2004
One page from Applicant’s service record
E-mail between the Applicant and Major O_, (3 pages) dtd June 11,2002
Statement from Applicant, undated
Request for waiver to Texas National Guard, dtd 2003/12/11
Request for waiver to Texas National Guard, dtd 2003/11/24
MCI online student record, (2 pages) dtd 12/4/03
Picture of Applicant
Statement, (2 pages) unsigned and undated
Letter from Applicant, (3 pages) undated
Letter to Applicant from Headquarters United States Marine Corps, Personnel      Management Support Branch, dated March 18, 2004

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: 980408               Date of Discharge: 030602

 Length of Service (years, months, days):

         Active: 00 02 27
         Inactive: 04 10 28

 Age at Entry: 27                          Years Contracted: 8

 Education Level: 12                        AFQT: 86

 Highest Rank: LCpl                         MOS : 0121

 Final Enlisted Performance Evaluation Averages (number of marks ):

 Proficiency: 3.0 (1)                       Conduct: 3.0 (1)

 Military Decorations: None

 Unit/Campaign/Service Awards: LoA, REB

 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 :

980407:  Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.
980408:  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.

980511:  Applicant reported for initial tour of active duty for training.

980808:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

990206:  Applicant informed eligible but not recommended for promotion to Lance Corporal due to unsatisfactory drill participation for the month of February 1999. [Unsigned.]

990306:  Applicant informed eligible but not recommended for promotion to Lance Corporal due to unsatisfactory drill participation for the month of March 1999. [Unsigned.]

990321:  Counseled for deficiencies in performance and conduct. [Unsatisfactory participation in the Selected Marine Corps Reserve (SMCR), unexcused absence on drills 990206 and 990207. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned.]

990321:  Counseled for deficiencies in performance and conduct. [Unsatisfactory participation in the Selected Marine Corps Reserve (SMCR), unexcused absence on drills on 990306.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned.]

990524:  Applicant excused from attending IIADT during 990529-990720 due to financial hardship.

990922:  Applicant informed eligible but not recommended for promotion to Lance Corporal due to unsatisfactory drill participation for the month of April 1999. [Unsigned.]

990922:  Applicant informed eligible but not recommended for promotion to Lance Corporal due to unsatisfactory drill participation for the month of May 1999.

991107:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled IDT’s on 991107. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned by Applicant.]

000305:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled IDT’s on 000304-000305.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned by Applicant.]

000402:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled IDT’s on 000401-000402.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned by Applicant.]

000604:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled IDT’s on 000603-000604] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned by Applicant.]

000806:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled IDT’s on 000804-000806.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned by Applicant.]

000910:  Counseled for deficiencies in performance and conduct. [Unexcused absences from scheduled IDT’s on 000908-000910.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Unsigned by Applicant.]

000919:  Applicant informed eligible but not recommended for promotion to Corporal for the July, August, September/4 th quarter, 2000 promotion period because of unauthorized absence.

UNDATED:         Applicant informed eligible but not recommended for promotion to Corporal for the 1 st quarter of 2001 promotion period because of unauthorized absences. [Entry undated and unsigned by Applicant.]

021220:  Applicant informed eligible but not recommended for promotion to Corporal for the January, February, and March 2003 promotion period because of unsatisfactory participation. [Applicant not available for signature.]

UNDATED:         Applicant informed eligible but not recommended for promotion to Corporal for the quarter October, November, and December 2002 promotion period because of unsatisfactory participation. [Applicant not available for signature.]


030326:  Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training (dtd 030320) was sent via certified mail, return receipt requested. Applicant failed to acknowledge receipt of letter by return signature. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)] [Date extracted from Affidavit of service, dated 030326.]
030326:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter. [Extracted from Affidavit of service, dated 030326.]
030417:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. [Extracted from Command use only document dated 030417.]

UNDATED:         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 missed drills on 030215-030216 4; 030117-030119 4; 021114-021116 3; 020817-020818 4; 020720-020721 4. Total number of missed drills: 20.

030521:  SJA review determined the case sufficient in law and fact.

030522:  GCMCA ,CG, Headquarters, Fourth Marine Aircraft Wing, New Orleans, LA 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 20030602 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 states that he was “enduring several hardships” in the time leading up to his discharge. The record documents that the Applicant missed 20 drill periods from Jul 02 through Feb 03. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant states that he “had no formal chain of command to address my issues to” and that he “attempted to dispute the discharge and sent in statements but had no reply.” In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Applicant was assigned to MAG-41, which provided him with a chain of command. There are no documents to support the Applicant’s claim that he attempted to dispute the discharge. The record does show that the Applicant failed to return the Acknowledgement of Rights within the time limit indicated on the notification letter. The record contains no evidence of any wrongdoing by anyone in the discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant states that he “seeking this change in order that I might serve in the military again.” Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps. Reenlistment policy of the naval service is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.


The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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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