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USMC | DRB | 2005_Marine | MD0500315
Original file (MD0500315.rtf) Auto-classification: Denied


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

ex-PFC, USMCR
Docket No. MD05-00315

Applicant’s Request
The application for discharge review was received on 20040728. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant listed civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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

Issues submitted by Applicant’s counsel/representative ( CIVILIAN COUNSEL):
“Application for the Review of Discharge or Dismissal from the Armed
Forces of the United States
Addendum to

DD Form 293, (Section 8. Issues)(New form Sec. 6)
1.

I. Applicant

 K_ L. C_ ( Applicant ), (social security number), was recruited from the State of Tennessee in 1988, where he attended Stratford High School. At the time of recruitment, the applicant resided at (address deleted). The place of enlistment was the Nashville, MEPS, Nashville, Tennessee 37220-1378. At the time of recruitment, the applicant indicated that the maiden name of his mother as A_ C_ O_, and listed the full name of his father as J_ R. C_ i , who were legally married in the State of Tennessee at the time of the applicant’s enlistment. Mr. K_ L. C_ is today, and has been since the time of separation, a resident of Nashville, Tennessee and currently resides at (address deleted)
2.

K_ L. C_ ( Applicant ) received basic recruit training instructions at the Marine Corps Training Depot at Paris Island, South Carolina from 881117 to 890209 ii , where he was selected as the guide of platoon and eventually selected as his platoon’s Honor Graduate. He also received an Outstanding Achievement Award for High Physical Fitness Testing. K_ L. C_ ( Applicant ) was also a student at Marine Corps’ School of Infantry from 890220 to 890420 iii at Camp Lejune, North Carolina and was also selected as the guide for his platoon. Finally the applicant was assigned to Company “I’, 3D Battalion, 24 th Marines 4 th Marine Division, (REIN), FMF, USMCR, Nashville, Tennessee 37209 on 890503 iv .
3.

K_ L. C_ ( Applicant ) registered for college at Tennessee State University in the fall of 1990 and utilized the funds made available to him by the G.I. Bill.



II. Issues
4.

 K_ L. C_ ( Applicant ) received notice that his company was being deployed to Southwest Asia as participants in Operation Desert Shield. During the local processing of the company, the applicant designated his mother, A_ C. C_, as the person who would have power of attorney privileges over his personal affairs while he participated in the said operation.
5.

 J_ R. C_ became the K_ L. C_’s ( Applicant 's) legal father after A_ C. C_ and J_ R. C_ decided that J_ R. C_ would legally adopt Mrs. C_’s four children and change their former names to C_. J_ R. C_ was fighting an addiction to cocaine during the time K_ L. C_ ( Applicant ) was preparing for the said operation. The applicant made financial arrangements under Marine Corps guidelines to have only $50.00 of his regular pay made available to him while in Southwest Asia and the balance of the same pay deposited directly to his local bank account. The applicant submitted the only debit card for his account to his mother, where she would use the card to make the necessary payments on other accounts that the applicant was responsible for at that time.
6.

 He participated in Operation Desert Shield from 910101 until 910116. The applicant also participated in Operation Desert Storm from 910117 until 910404 v . During periods of acclimatization and during several training exercise, K_ L. C_ ( Applicant ) was selected by his peers and on at least particular occasion, to fall out of the formation to lead the company in exercises that involved company runs.
7.

 K_ L. C_ ( Applicant ) received an Honorable Discharge from active duty as a result of his participation in both Desert Shield and Desert Storm). vi The applicant received a National Defense Service Medal, Southwest Asia Service Medal and a Sea Service Deployment Ribbon.
8.

When the applicant returned from Southwest Asia in April of 1991, he contacted his mother in reference to wiring him some of the funds from his account to North Carolina. The applicant learned at that time that his step-father had taken the bank card from his mother and used all of the money to buy drugs. His mother was able to wire him $200.00 from her account. K_ L. C_ ( Applicant ) informed some of his fellow Marines of the incident and they loaned him funds to purchase clothing and other supplies.
9.

 When the applicant returned to Nashville, he found his mother living in a small duplex in a low income neighborhood. He learned that his father had used his [the applicant] vehicle to haul steel and aluminum to a local factory where he exchange it for money that also supported his drug habit.
10.

 The applicant was not able to resume his college studies because he wanted to help support the financial needs of his mother. His mother offered to pay as much of the pay stolen back, but the applicant to her not to worry about because he felt that she had suffered enough. The applicant’s mother and father separated later in the fall of 1991.
11.

 K_ L. C_ ( Applicant ) began to work as a waiter in a local hotel and relied upon tips for the majority of his income. Most of the opportunities to earn tips were during the weekends and also while certain groups were staying at the hotel. K_ L.C_ ( Applicant ) often had to decide to make arrangements to miss a scheduled drill because of work in order to earn money from tips. He made several of the weekends up by working 3 to 4 days in the Company “I”, office, cleaning weapons and providing general cleaning duties. He volunteered for all of the Color Guard/Honor Details that the unit where the unit was requested to participate in, as well as a regular volunteer for the Toys for Tots Campaign. He loved any opportunity to wear his Honor Graduate Dress Blues.
12.

 During some of the counsel sessions that K_ L. C_ ( Applicant ) attended to discuss his unsatisfactory drills, he felt that the intervention and counseling that was being provided by the designated personnel lacked understanding and was void of the professional psychological and social support that should have been provided given the circumstances, and he felt as if there was pressure from the command for him to separate from the unit. Without any professional or legal advice, K_ L. C_ ( Applicant ) made the difficult choice to support his family rather than fulfill his in-active obligation to the reserve unit, and as a result, he received an Other Than Honorable Discharge, and a RE-4 reenlistment code.

III.     Prayer of Applicant
13.

 The applicant begs the Distinguished Board to review the aforementioned issues and also consider the fact that K_ L. C_ ( Applicant ) took a job at the Sheraton Music City Hotel while he was still attached to Company “I” as a Security Officer in August 1991, and remained employed at the hotel until May 2004, and held such positions as Director of Security and Front Desk Manager. He became a Police Officer/Aircraft Rescue Fire Fighter at the Metro Nashville Airport in November 1993. He worked part time at the hotel until he resigned from the Airport Police to become the Director of Security at the hotel. K_ L. C_ ( Applicant ) became active in the National Association for the Advancement of Colored People (NAACP) in 1989, before being deployed to Southwest Asia. When he returned from Southwest Asia, he was elected as the President for the Youth & College Division for the State of Tennessee where he served from 1990-1994, and received numerous leadership awards from national and regional offices. He became the youngest state officer for the Tennessee State Conference of Branches of the NAACP when he was elected as a State Vice President of the organization in 1996. He also worked with the local Urban League and other community based organizations. He founded an organization called Character Builders where he traveled across the State of Tennessee speaking to school aged students on the importance of leadership development. He was a volunteer at the Davidson County Election Committee from 1994 - 1998, where he became an Officer of Elections. He was a candidate for Councilmember - at - Large in 1998.
He was designated as the State Coordinator for the NAACP Voter Empowerment Project- 2000 where he was instrumental in registering over 10,000 college-aged students to vote. He has received many awards and recognition for his support to the local public school systems where he asked to speak on certain holidays and occasions. He has recently returned to school as 34 year full time student with three children and a full time job, and currently has a GPA of 3.4 as a student in the Political Science Degree Program at Nashville’s Fisk University.
14.

 K_ L. C_ ( Applicant ) never recovered the money he earned for his small role in support of his country’s defense. His step father is still on drugs and receives a disability check from the United States Veterans Affairs. He has just now returned to school after that one incident forced him into the labor force over 10 years later. He did not reap the benefit of the G.I Bill. When he tried to re-enlist or inquire about living out his commitment, he was informed that his RE code would not allow it.
15.

 He comes now to appeal before the Board and only asks that he receive an Honorable Discharge for his service to his country. This the applicant, K_ L. C_ beg the Distinguished Board.
i DD form 372, Application for Verification of Birth, (871122).
 ii Chronological Record (1070), (920814).
 iii Chronological Record (1070), (920814).
 iv Chronological Record (1070), (920814).
 v Combat History-Expeditions-Awards Record (1070).
 vi DD 214 .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Service, dtd July 24, 2000
Administrative discharge ltr, dtd 19 Mar 92
Enlistment contract (1 page; 2 copies)
DD Form 372, dtd 871122
3 pages from Applicant’s SRB

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Active:                            None                       HON
          Inactive: USMCR (J)               881110 - 920310  COG

 Period of Service Under Review :
Date of Enlistment: 881110               Date of Discharge: 920310

 Length of Service (years, months, days):

         Active: 00 10 17
         Inactive: 02 05 15

 Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 53

 Highest Rank: LCpl                         MOS: 0311 (Rifleman)

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (9)              Conduct: 4.0 (9)

 Military Decorations: LtrApp (2), CertApp

 Unit/Campaign/Service Awards: SSDR, NDSM, MUC, KLM

 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 :

881110:  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.

901111:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from scheduled drills] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910208:  NJP for violation of UCMJ, Article 113: Misbehavior of Sentinel or Lookout 910202.
 Awd forfeiture of 7 days pay ($216.00), and 14 days restriction and extra duties. Forf susp for 6 mos. Not appealed.
910228:  Counseled for deficiencies in performance and conduct. [Insubordination and belligerence to an NCO] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

910315:  Suspended forfeiture vacated for violation of UCMJ, Art 91, Insubordinate Conduct Toward Noncommissioned Officer.

910915:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from scheduled drills] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911109:  Counseled for deficiencies in performance and conduct. [Unauthorized absences from rescheduled drills] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911208:  Counseled for deficiencies in performance and conduct. [Unauthorized absence from scheduled drill] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

911209:  Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.
911209:  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. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]
920127:  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 “Unexcused Absences (currently 14 unexcused … for the period of Aug 91 and Oct thru Dec 91). Commanding officer’s comments: “PFC C_ (Applicant) has no potential for further service in the U. S. Marine Corps Reserve or the U. S. Marine Corps, nor does PFC C_ (Applicant) have mobilization potential. PFC C_ (Applicant) has been informed of the Marine Corps’ policy concerning unexcused absences and the possible consequences of such actions as outlined in references (a) and (b). PFC C_ (Applicant) has proven by his actions that he neither cared for nor had a desire to abide by the policies and regulations established by the Marine Corps. All attempts to turn PFC C_ (Applicant) around into becoming a satisfactory participant by members of this command have failed. PFC C_ (Applicant) had previous unexcused absences for which he was authorized and performed EIODs to make up those UAs. It was thought the PFC C_ (Applicant) would continue to show improvement in his drill participation and performance but he has openly stated that he no longer desires to be a functional member of this command and wants to be discharged from the Marine Corps Reserve at the earliest possible date.

920224:  SJA review determined the case sufficient in law and fact.

920225:  GCMCA [Commanding General, 4 th Marine Division (Rein)] 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 19920310 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).

In response to the Applicant’s issues as presented in his representative’s case brief: The Applicant’s problems in the Marine Corps Reserve can be attributed to his " difficult choice to support his family rather than fulfill his in-active obligation to the reserve unit ." While the Applicant may feel his stepfather’s drug addiction was the underlying cause of his misconduct, the record clearly reflects his willful failure to meet the requirements of his contract with the Marine Corps Reserve. The evidence of record did not show the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives regulating good order and discipline in the naval service, and falls short of that required for an honorable service characterization. An upgrade to honorable would be inappropriate. It must be noted most Marines serve honorably; thereby, earning honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher a service characterization than is due. Relief is not warranted.

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 the service. The NDRB is authorized to consider outstanding 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. 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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 his 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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