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NAVY | DRB | 2004 Marine | MD04-00923
Original file (MD04-00923.rtf) Auto-classification: Denied


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


ex-Pvt, USMCR
Docket No. MD04-00923

Applicant’s Request
The application for discharge review was received on 20040511. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a hearing before the Board in Washington, D.C. The Applicant was advised that his case would first receive a documentary record review. The Applicant listed B_ B_ as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety in the characterization of the Applicant’s service was discovered by the NDRB. However, the Board discerned an inequity in the Applicant’s characterization of service. The Board’s vote was three to two that the character of the discharge shall change. The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/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. “I would like to continue my career as an officer in the Marine Corps by joining the ROTC Program at UC Berkeley where I currently attend.”
Additional issues submitted by Applicant’s counsel/representative (B_ B_):

 2. “Injustice. I was in the hospital and my unit did not give me a chance to present them my hospital record.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Discharge certificate
Copy of DD-214 (2)
 Letter from OLA to Congressman H_
 Letter from Congressman H_ to Applicant
Medical records (46 pp.)
 Letter from Applicant
Request for college records
Transcript from DeAnza College (2 pp.)
Service record copies (4 pp.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                991215 - 000109  CHNG PGM

 Period of Service Under Review :
Date of Enlistment: 000110               Date of Discharge: 020521

 Length of Service (years, months, days):
         Active: 02 04 12
          Inactive: None
Age at Entry: 19                          Years Contracted: 8

Education Level: 12                        AFQT: 37
Highest Rank: PFC                          MOS: 0351

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.4 (3)                       Conduct: 4.3 (3)
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 :

000110:  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.
001014:  Counseled for deficiencies in performance and conduct. [Failed to muster for drill on 000714-000715 and 000922-000924.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
010121:  Reserve Absence Report documents 13 unexcused absences during the period of 000714 to 010121.
010323:  Applicant placed in Temporary Not Physically Qualified (TNPQ) drill status. Applicant acknowledged that he must provide medical documentation from his physician every 30 days to maintain TNPQ status and that failure to do so will result in termination of TNPQ status. Also advised that upon termination of TNPQ status, a failure to attend the next scheduled drill could result in administrative reduction and/or separation under other than honorable conditions.
010323:  Medical Department Representative, E/2/23: Placed in TNPQ status due to post-concussion syndrome (accident occurred on 000701). Estimated return to full duty is “Unexpected Drill.” While in TNPQ status, you will be permitted to drill, performing those duties that do not interfere with your limitations. Recommend no field duty. Not allowed to transfer or perform periods of active duty until recovery is complete.
010402:  Commanding Officer notified the Applicant of unsatisfactory drill participation via certified letter.
010503:  Administratively reduced to Private due to unsatisfactory drill participation.
010503:  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 did not receipt for letter by return signature and failed to acknowledge the contents. The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).
011214:  Statement from 1 st Sergeant details attempts to make contact with Applicant during the period 001016 to 011114. Applicant has not been excused from drill from 010420 to the present time.
011214:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve. The I-I Staff and the Marine’s chain of command has made continuous repeated attempts to locate this Marine via telephone, and personal visits. Applicant has been avoiding our calls and attempts to help him recover and return to a good drilling status. The unit was not successful in recovering Applicant’s 782 gear.
020520:  SJA review determined the case sufficient in law and fact.

020520:  GCMCA [CG, 4 th MARDIV] 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 20020521 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 but not equitable (E and F).
Issues 1 and 2. The Board found that the Applicant was placed in a Temporary Not Physically Qualified (TNPQ) drill status and instructed to attend unit drills while in TNPQ status. The Applicant was unexcused from drill within one month of being placed in TNPQ status. This action by the Applicant’s chain of command was not in accordance with the Marine Corps Reserve Administrative Management Manual, MCO P1001R.1J, which prohibits attending drill while in a TNPQ status. Within two weeks of this unexcused drill period, the Applicant was administratively reduced to Private and notified that he was being processed for administrative separation due to unsatisfactory participation. The Board found that the Applicant’s unexcused drills while in a TNPQ status directly contributed to the decision to process the Applicant for administrative separation. The Applicant was thereby inequitably discharged.

The Applicant’s characterization of service should be the type warranted by his service record. Since the Applicant had accumulated thirteen unexcused absences prior to his placement on TNPQ, his service is equitably characterized as under honorable conditions (general). Relief is therefore granted.


















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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