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NAVY | DRB | 2004 Marine | MD04-00825
Original file (MD04-00825.rtf) Auto-classification: Denied


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

ex-LCpl, USMCR
Docket No. MD04-00825

Applicant’s Request
The application for discharge review was received on 20040421. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Failure to Participate (Reserve not on active duty) (administrative discharge board required but waived), authority: MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:
1. “My name is Cpl E_ (Applicant), by the time you get this it will be Sgt. E_ (Applicant). I apologize for writing this long hand but my time is limited. Currently I am in the Army assigned to A-Co 5/20 INF Presently located in IRAQ. I was going to apeal to you a couple of years ago whitch explains the dates on some of the letters, but I could not justify asking you for a change of discharge when our boys are in afganistan so I transferred from the Army Guard to Active unit and now that I’ve been in IRAQ for 6 months I hope that mabe I have earned the right to ask for your consideration. I know I did wrong but I have not been a scmuck my whole life. Just for a brief time over 10 years ago. When I get out of the army in may 2005 I have secured a job at the Mont. Sheriff’s Dept. however, The only way they can hire me is if my discharge is changed. I hope that you can find it in your heart to give me a second chance. Again I’m sorry for the long hand, the spelling and the grammer Cpl E_ (Applicant) .”
American Legion did not provide any issues for the Board’s consideration.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
LES for 1-31 Mar 04
Certificate of Appreciation, dtd March 31, 2001
Certificate of Continuing Education Units (CEU) for Pediatric training
LES for 1-28 Feb 04
EMT-Basic Certification
Award Recommendation for an Army Achievement Medal
NAVPERS 1650/65 Personal Awards Eligibility Form
NAVMC 118 (8), Combat History-Expeditions-Awards Record from SRB
Training Certificate, EMT-Basic, dtd 3-6 March 2003
Training Certificate, New Soldier Training, dtd 26 Sep 03
DA Form 638, dtd 1 Nov 02
DFAS Form 702
Character reference, dtd August 31, 2001
Character reference, dtd September 5, 2001
Character reference, dtd September 4, 2001
Character reference, undated
Character reference, dtd 04 Sep 01
Character reference, dtd September 5, 2001
NGB Form 22E (2 copies)
Honorable Discharge Certificate from the Alabama National Guard

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: 890731               Date of Discharge: 941213

 Length of Service (years, months, days):

         Active: 01 00 23
         Inactive: 03 03 20

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 41

 Highest Rank: LCpl                         MOS: 0311 (Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (6)              Conduct: 4.4 (6)

 Military Decorations: CAR

 Unit/Campaign/Service Awards: NDSM, SWASM (w/3 stars), SSDR, KLM(S),
KLM(K), NUC
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Failure to Participate (Reserve not on active duty) (administrative discharge board required but waived); authority: MARCORSEPMAN 6213.

 Chronological Listing of Significant Service Events :

900120:  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.

911208:  Counseled for deficiencies in performance and conduct. [PFT Failure] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

930207:  Applicant placed on weight control, personal appearance program.

940410:  Counseled for deficiencies in performance and conduct. [Unsatisfactory drill performance] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

940428:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.
940507:  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. Letter was receipted for 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)]
940507:  Applicant advised of rights and having elected not to consult 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.

940813:  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 absence from regularly scheduled drills for which he made no effort to make up.

941026:  SJA review determined the case sufficient in law and fact.

941121:  GCMCA [Commanding General, Marine Reserve Force] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

941213:  Applicant discharged

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941213 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 signed a contract with the United States Marine Corps on 900120, 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. A letter of intent to administratively separate the Applicant was sent via certified mail and receipted for on 940507. The letter notified him the command was recommending that he be separated from the reserves under other than honorable conditions for failure to participate in reserve training, specifically scheduled drills for the months of 11, 12, 13 March 1994, and 9 & 10 April 1994, totaling 9 unexcused absences. Applicant failed to acknowledge the contents of the letter. The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303). The Board was impressed with the Applicant’s efforts to continue serving our country, but does not consider these efforts to be sufficient enough to mitigate the Applicant’s willful failure to participate in reserve drills that he knew he should be attending. Relief denied.

 The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering his discharge proper and equitable. This issue does not serve to provide foundation upon which the Board can grant relief.

There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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 may be considered. Verifiable proof of 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, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.
 
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 her 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 P1900.16D, effective 890627 until 950817) states that a Marine may be separated for unsatisfactory participation in the Ready Reserve under criteria established in MCO P10014.1.

B. Marine Corps Reserve Administrative Management Manual, MCO P10014.1.

C. Table 6-1, Guide for Characterization of Service, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817).

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 F. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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