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NAVY | DRB | 2004 Marine | MD04-01125
Original file (MD04-01125.rtf) Auto-classification: Denied


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

ex-PFC, USMCR
Docket No. MD04-01125

Applicant’s Request
The application for discharge review was received on 20040628. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review and a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any 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 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. “Discharge was unwarranted. Requested mass and was not given mass.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
DD Form 149, dtd 20040115
Statement by Applicant,(5 pages) dtd January 15, 2004
Copy of DD Form 214 (Member –4)
Copy of email from K_S_, (2 pages) dtd 28 Sep 2000
Copy of Legal Status Report, (2 pages) undated
Copy of letter from K_D_B_, (3 pages) dtd April 17, 2001
Copy of letter from M_B_P_, dtd 2 February 2000
Copy of email from J_C_ W_, September 27, 2000
Copy of letter from K_L_J_, dtd Jul 06 2000
Copy of letter from D_L_K_, dtd March 18, 2004

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 970715               Date of Discharge: 000629

 Length of Service (years, months, days):

         Active: 00 07 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 8

Education Level: 12                        AFQT: 71

 Highest Rank: LCpl                         MOS: 5811

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (5)                       Conduct: 4.3 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: PEB, 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 :

970715:  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.
980421:  Applicant was offered an inter-unit transfer IAW MCO P1001R.1H, para 3104.3a and declined. Applicant was counseled and elected to commute in excess of 100 miles to his Home Training Center to make his monthly drills.
990505:  Commanding officer notified the Applicant of unsatisfactory drill (missed drills on 990501 and 990502) participation via certified letter.

990824:  Counseled for deficiencies in performance and conduct: UA from the following drills 990501 – 990502. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

991109:  Commanding officer notified the Applicant of unsatisfactory drill (missed drill on 991105 and 991106) participation via certified letter.

000109:  Commanding officer notified the Applicant of unsatisfactory drill (missed drills on 000107, 000108, and 000109) participation via certified letter.

000131:  Commanding Officer’s letter of intent to for administrative reduction for unsatisfactory performance of reserve training in the Selected Marine Corps Reserve sent to Applicant via certified mail #P689 654 048. Applicant has 20 days from date of receipt to provide a written statement for the unit commander’s consideration.
000131:  Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail, #P689 654 048, return receipt requested.

000306:  Applicant did not return the Acknowledgement of Rights within the time limit indicated on the notification letter. The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)

000313:  Applicant administratively reduced to PFC due to unsatisfactory performance of Reserve training, specifically failure to attend scheduled drills while a member of the Selected Marine Corps Reserve.

000323:  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 failure to attend drills as follows: 16 missed drills during the preceding 12 month period on 7, 8, and 9 January 2000; 18 and 19 December 1999; 5 and 6 November 1999; 1 and 2 May 1999 as provided in paragraph 6213 of reference (a).

000602:  SJA review determined the case sufficient in law and fact.

000602:  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.

000706:  Applicant discharged this date. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000629 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 contends that the discharge was unwarranted. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant missed 16 Selective Marine Corps drill periods over a 12 month period. The Applicant signed an enlistment contract into the USMCR that required participation 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. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant says that he “requested mass and was not given mass”. Nonjudicial punishment is not a “right” and is only imposed at the Commanding Officer’s discretion. The record contains no evidence of any wrongdoing by anyone in the administrative discharge processing. The record indicates that the Applicant’s Commanding Officer ensured that all administrative requirements were met. The Applicant was properly notified by certified mail of the 16 missed drills, the Commanding Officer’s intent to administratively reduce the Applicant in rank, and to administratively discharge him. The Applicant failed to respond to the Acknowledgement of Rights within the time limit indicated on the notification letter. The Applicant’s enlistment contract required him to keep the Commanding Officer informed of his current address and phone number at all times. 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 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 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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