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NAVY | DRB | 2004 Marine | MD04-00831
Original file (MD04-00831.rtf) Auto-classification: Denied


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

ex-PFC, USMCR
Docket No. MD04-00831

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 requested a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list a representative on his DD Form 293. Subsequent to the Application, the applicant obtained representation from the Veterans of Foreign Wars.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 20041019. 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/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: “Ask the board to upgrade to honorable or at minimum general under honorable conditions.”
Supporting issue submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

2. “Upgrade Discharge to Honorable and at minimum General Under Hon after considering all evidence of review.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant (2 pages)
Character Reference Letter from Sheriff J__ G__ dated January 23, 2004
Letter of Recommendation from Assistant Principal G__ A. G__, Fort Wayne North
Side High School dated February 2, 2003
Character Reference Letter from D__ M. S___, Chief of Police of Celina Police
Department dated March 11, 2002
Character Reference Letter from R__ G___, Chief of Police of St Henry Police
Department dated January 22, 2004
Employee Training Record dated January 27, 2004
Copy of Letter of Certification for Ohio Peace Officer Training dated January 22, 2001
Copy of Certificate of Completion (OH1 Update Training) dated March 28, 2000
Copy of Ohio Peace Officer Instructor Certificate dated April 15, 2002
Copy of Certificate of Training (Law Enforcement Officer, Flying Armed) dated
February 10, 2003
Copy of Certificate of Completion (WMD Response Training 100) dated October 15, 2002
Copy of Certificate of Completion (Tactical Officer Survival Skills) dated August 21 through
August 22, 2002
Copy of Certificate of Completion (Police Supervisor, Management, Leadership and Liability)
dated August 9 & 10, 1999
Copy of Certificate of Completion dated (40 hours Police Mountain bike Patrol) dated
July 8012, 1996
Copy of Certificate of Completion (Ohio Criminal Gang Law Training) dated December 4, 1998
Copy of Certificate of Completion (Close Quarter Firearm Tactics) dated February 24, 1997
Copy of Certificate of Participation (Family Violence Seminar) dated August 17-18, 1995
Copy of Certificate of Completion (Tactical Baton) dated February 21, 1996
Copy of Certificate of Completion (Scene Safety) dated May 7, 1997
Copy of Certificate of Completion (Talking with Kids about Alcohol)
Copy of Certificate of Completion (High-Risk Vehicle Stops) dated April 24, 1996
Copy of Certificate of Completion (Personal Safety and Survival Tactics and Techniques) dated
December 5-8, 1994
Copy of ASP Baton Instructor Certificate dated November 25-26, 1997
Copy of Certificate of Recognition (Tactical Baton Instructor) dated November 26, 1997
Copy of Certificate of Completion (Weather Spotters Class) dated February 23, 1994
Copy of Certificate of Achievement (Law of Arrest and Testifying in Court Seminar dated
March 1, 1994
Copy of On-Road Visual Estimate Testing dated January 28, 1996
Copy of Certificate of Training (24 hours Theory, Aspects, and Practical use of Traffic Radar)
dated January 28, 1996
Copy of Certificate of Completion (BMV Driving Records Seminar) dated December 7, 1993
Copy of Certificate of Completion (Domestic Violence Training) dated October 13, 1993
Copy of DUI Refresher Course Certificate dated December 15, 1994
Copy of Gangs and Youth in Smaller Towns and Rural Areas Certificate dated
November 17, 1994
Copy of Certificate of Completion (Advanced Detection, Apprehension and Prosecution of
Person Under the Influence of Alcohol (Improved Sobriety Testing-Horizontal Gaze
Nystagmus) dated March 14-17, 1994
Copy of Certificate of Completion (Regional Crash Investigation) dated June 10-14 1996
Copy of Certificate of Completion (Drug Interdiction) dated January 19-22, 1993
Copy of Certificate of Completion (Polytesting, Narcotics Screening & Identification Training)
dated January 20, 1993
Copy of Certificate of Completion (Flying Armed) dated April 23, 1998
Copy of Certificate of Completion (Action-Response Use of Force Liability Management
Program) dated October 26-27, 1994
Copy of Certificate of Completion (2 hour Attendance of Incident Management Course) dated
May 19, 1998
Copy of Certificate of Completion (Street Level Drug Identification) dated March 25, 1999
Copy of Certificate of Completion (Conducting Effective Traffic Stops and Preventing Bias
Based Profiling) dated August 13-14, 2001
Copy of Certificate of Achievement (Attended Concepts & Principles of Standardized Field
Sobriety Testing 4 hours) dated June 25, 2000
Copy of Certificate of Achievement (Evidenced Collection & Case Preparation in Crimes of
Domestic Violence) dated August 15, 1996
Copy of Certificate of Completion (8 hour Advanced Handgun Training) dated April 3, 2000
Copy of Certificate of Completion (Training the Tactical Shotgun) dated March 1, 2002
Copy of Certificate of Completion (New Mayor’s Court Clerk Training) March 22, 2002
Copy of Ohio Peace Officer Instructor Certificate dated April 15, 2002
Certificate of Completion (Ohio Peace Officer Basic Training Program) dated June 27, 1992
Certificate of Completion (ASP Tactical Baton Instructor) dated November 25-26, 1997
Copy of Certificate of Review (DNR Article) dated July 31, 2002
Copy of Certificate of Review (Strategic Awareness Article) dated July 31, 2002
Copy of Certificate of Review (So, Your Patient is Pregnant Article) dated July 31, 2002
Copy of Certificate of Review (Cardiac Tamponade Article) dated July 31, 2002
Copy of Certificate of Review (Airway Mgmt/Pediatrics Article) dated July 31, 2002
Copy of Certificate of Completion (Hazardous Materials Refresher Course) dated April 27, 2003
Copy of Certificate of Completion (10 hours continuing education 2003 Spring Conference)
dated April 4-6, 2003
Copy of Certificate of Completion (Electrical Safety) dated March 25, 2003
Copy of Certificate of Completion (Grain Rescue) dated September 30, 2001
Copy of Requalification Certificate (Private Security Firearm Training) dated May 30, 2002
Copy of Certification Letter and Certificate for Basic EMT
Copy of Certificate of Completion (36 hour Firefighter 1A) dated December 4, 1999
Copy of Certificate of Completion (National Registry Practical Skills) dated June 1, 1999
Copy of Certificate of Completion (40 hour Hazardous Material Technician) dated January 13,
14, 20, & 21, 2001
Copy of Certificate of Completion (First Responder Awareness/Operations) dated
September 23 & 24, 2000
Copy of Certificate of Completion (5 ½ hours Continuing Education 2000 Fall Conference)
dated October 20, 21, 22, 2000
Copy of Certificate of Completion (8.5 hours Continuing Education 2000 Spring Conference)
dated April 14, 15, 16, 2000
Copy of Certificate of Completion (Live Fire Attack) dated May 7, 2000
Copy of Certificate of Completion (Weather Spotter Course) dated February 22, 2001
Copy of Certificate of Completion (Farmer Rescue) dated May 6, 2001
Copy of Certificate of Participation (Annual Van Wert County Fire Fighters Association Fire
School) dated September 30, 2001
Copy of Certificate of Completion (5.75 hours Continuing Education 36 th Annual Summer
Education l Conference), undated
Service Related Documents (34 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: 900110               Date of Discharge: 930223

 Length of Service (years, months, days):

         Active: 00 06 05
         Inactive: 02 07 09

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 54

 Highest Rank: PFC (MOS: 2531, Field Radio Operator)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.1 (6)              Conduct: 4.1(6)

 Military Decorations: None

 Unit/Campaign/Service Awards: RSB, NDSM, MUC

 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 :

900108:  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.

920911:  Counseled for deficiencies in performance and conduct. [My unsatisfactory participation, specifically my unexcused absences from scheduled drills on 920802 (2 drills), 920827 (2 drills (RIDT auth for drills), and 920828 (1 drill (RIDT auth for 920731)); a total of 5 drills] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920913:  Counseled for deficiencies in performance and conduct. [My unsatisfactory participation, specifically my unexcused absences from scheduled drills on 920911 (1 drills), 920912 (2 drills), and 920913 (2 drills); and 5 drills from Aug 92, a total of 10 drills] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
920917:  Letter of intent to administratively reduce sent 920913 via certified mail P 442 276 927.
921004:  Counseled for deficiencies in performance and conduct. [My unsatisfactory participation, specifically my unexcused absences from scheduled drills on 921002 (1 drills), 921003 (2 drills), and 921004 (2 drills); and 10 other drills from Aug –Sep 92, a total of 15 drills] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921004:  Applicant administratively reduced to the rank of PFC, E-2 on 921004 with an effective DOE 900801 unsatisfactory participation by having abs for the following periods: 2, 27-28 Aug 92, 11-13 Sep 92, and 2-4 Oct 92, a total of 15 drills. Applicant failed to submit a statement within the authorized 20 day period.
921008:  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.

921008:          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.
921020:  Officer in Charge 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 unexcused absence record for the following drills periods 2 August 1992 (2 drills), 27 August 1992 (2 drills RIDT for 920801), 28 August 1992 (1 drill, RIDT for 920731), 11-13 September 1992 (5 drills), and 2-4 October 1992 (5 drills), a total of 15 drills. Commanding officer’s comments: Since joining this unit on 2 September 1990, PFC M__ had been a productive member of the unit working in the capacity of a Field Radio Operator (2531). He attended drill regularly until about January 1992 when he enrolled in college law enforcement courses. Some of his classes where on Saturdays and the command endeavored to allow him to attend these classes and make up the drills at a later date. In the summer of 1992, with the courses continuing, PFC M__ was removed from the personnel list to attend CAX 7-92 for his Annual Training (AT). He was authorized to perform a Home Armory at a later date when he finished his college courses that summer. He never attended an AT for FY-92. PFC M___ began to fail to make up his scheduled RIDT’s. In August 1992 he was granted excused absences for the July 31 1 August.dril1 periods (3 drills) and indicated that he would attend the Sunday~2 August drill periods. He failed to attend these drills and later in the month failed to attend his scheduled RIDT periods. When finally contacted by the unit he indicated that he had a new job as a police officer in his hometown of Rockford, OH and it was impossible for him to make it to drill. A letter later received by this unit from the police chief tended to back up his claim. When this unit contacted the police chief and told him that PFC M__ had an obligation to fulfill with the U.S. Marine Corps Reserve and must attend drill, the police chief said that he was unaware of PFC M___’s service obligation. Apparently contact with the police chief either had no impact or PFC M__ just continued to shirk his responsibility and obligation to attend drill. He has missed the September and October drill periods and has accumulated 15 unexcused absences. Because he has continually missed drill PFC M__ was administratively reduced to his present rank on 4 October 1992. When personally served with the notification of separation proceedings letter, acknowledgement to rights, and the purpose and scope of the BCNR and NDRB on 8 October 1992, PFC M__ indicated that he would gladly sign anything to get out of the Reserves, because his new job as a police officer simply did not allow him any time to either make up the missed drills, or to attend any future drill periods.
Based on the foregoing, and after several attempts by the OIC of this unit and other officers and NCO’s to pursuade PFC M__ to return to a satisfactory participation status, and coupled with his desire not to attend any future drill periods, it is quite apparent that he does not posses any mobilization potential in the SMCR and should be administratively separated as expeditiously as possible.
930129:  SJA review determined the case sufficient in law and fact.
930129:  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.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930223 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 & 2: The Applicant requested his discharge be reviewed in light of his post-service accomplishments. The Board was impressed with the Applicant’s post-service efforts, but does not consider these accomplishments to be of a sufficient nature to overcome the Applicant’s willful failure to participate in reserve drills that he knew he should be attending. The Applicant signed a contract on 900108, while enlisting into the USMCR, that acknowledged his understanding of the requirement to participate in 48 scheduled drills (usually one weekend per month) and not less than 14 days (exclusive of travel time) of active duty training per year for 6 years upon completion of initial active duty training. Additionally, the Applicant receipted for a letter of intent dated 921008, to administratively separate him under other than honorable conditions for the failure to participate in reserve training, specifically scheduled drills for the months of August, September and October1992, totaling 15 unexcused absences. The letter was sent via certified mail, with return receipt requested. The Applicant receipted for the letter by return signature. When contacted by his unit, the Applicant “indicated that he had a new job as a police officer in his home town of Rockford, OH and it was impossible for him it make it to drill.” The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity occurred during the Applicant’s enlistment. The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. It must be noted most Marines serve honorably and faithfully; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that the undeserving receive no higher a service characterization than is due. An upgrade to honorable would be inappropriate. Relief denied.

The following is provided for the Applicant’s edification. The NDRB has no authority to provided additional review of any case occurring more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.




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 5420.174C 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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