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USMC | DRB | 2005_Marine | MD0501000
Original file (MD0501000.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Pvt, USMCR
Docket No. MD05-01000

Applicant’s Request
The application for discharge review was received on 20050526. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293 at this time.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013. 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 by reason of unsatisfactory participation in the Ready Reserve.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“The reason why I am requesting an upgrade is, for one reason I do not desire to have this particular type of discharge on my record for the rest of my life, and also I have realized seriousness of being discharge from the USMC or any military branch for that matter. The reason for the request is so that can maybe right some wrong decisions made many years ago.

At the time of the discharge of wasn’t even aware that I getting this type of discharge due to the fact I wasn’t in place or in other words, in the vicinity where I could be reached. But, I also was not aware anyone was trying to contact me, except for one letter sent to F2 River Ridge in Louisburg, my place of residence at that time, which I do not have a copy of. I signed the letter of reprimand thinking everything was all right. So my desire is to get some clarity of what my mistake was and how to help other young military personnel from making the same mistake.

It is stated in DD-214 form concerning my unsatisfactory attendance of drills. My desire was to attend the drills but at that present time, I had moved out on my own into an apartment and I had no transportation because my vehicle was giving me trouble, and I had no one else to get me there.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Sixteen pages from Applicant’s service record
Vance-Granville Community College permanent student record, dtd April 19, 2000 (2 pages)
Criminal record check for State of North Carolina, dtd May 19, 2005
Certificate of Appreciation, dtd November 16, 1995
Certificate of Award, dtd March 24, 1998
Certificate of Completion, dtd February 6, 1998
Certificate of Award, dtd April 3, 1998
Certificate of Award, dtd May 15, 1998
Certificate of Appreciation, dtd April 7, 1998
Certificate of Award, dtd June 2, 1999
Certificate of Achievement, dtd February 23, 1998
Certificate of Apprecaition, dtd December 8, 1998
Certificate of Achievement, dtd February 23, 1999

PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 19940929             Date of Discharge: 19980326

 Length of Service (years, months, days):

 Active: 00 05 11
          Inactive: 03 00 18

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8

 Education Level: 12                                 AFQT: 43

 Highest Rank: LCpl                                  MOS: 3051

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (4)                       Conduct: 4.3 (4)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Rifle Marksman Badge


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 :

950130:  Statement of Understanding upon enlistment in the USMCR: Applicant acknowledged 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.
950830:  Applicant reported for initial tour of active duty for training.

960210:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

 970403:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation specifically failure to attend scheduled drills on 1, 2 Mar 97.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for signature.

970502:  Applicant administratively reduced in rank to Private First Class due to unsatisfactory performance of Reserve training.

970503:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation specifically failure to attend scheduled drills on 3, 4, 5, 6 Apr 97.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for signature.

970503:  Counseling: Recommended for administrative reduction to rank of Private First Class due to unsatisfactory performance of Reserve training. Applicant not available for signature.

970601:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the Jun promotion because of your unsatisfactory participation, specifically failure to attend schedule drills. Applicant not available for signature.

970607:  Counseling by certified mail: Advised of deficiencies in performance and conduct (Unsatisfactory participation specifically failure to attend scheduled drills on 3, 4 May 97.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Note: Entry unsigned.]

970707:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the July promotion because of your unsatisfactory participation, specifically failure to attend scheduled drills. Applicant not available for signature.

970906:  Counseling by certified mail: Advised of deficiencies in performance and conduct (Unsatisfactory participation specifically failure to attend scheduled drills on Aug 97.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for signature.

970906:  Counseling: Recommended for administrative reduction to Pvt due to unsatisfactory performance of Reserve training. Applicant not available for signature.

 970910:  Officer in Charge/Inspector-Instructor, SMU, Supply Company, 4th Supply Battalion, 4th Force Service Support Group, Raleigh, NC, notified the Applicant of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of unsatisfactory participation in the Ready Reserve. The factual basis for this recommendation was your unexcused absence from twenty-eight (28) drills from 970301 to 970907.
970911:  Affidavit of Service: Notification of Administrative Discharge Proceedings, Acknowledgement of Rights, and BCNR/NDRB information sent to Applicant via certified mail, return receipt requested.

UNDATED:         Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation specifically failure to attend scheduled drills on 6, 7 Sep 97.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for signature.
971001:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the Oct promotion because of your unsatisfactory participation, specifically failure to attend scheduled drills. Applicant not available for signature.

971009:  Affidavit of Service: Unsuccessful attempt to personally deliver Notification of Administrative Discharge Proceedings, Acknowledgement of Rights, and BCNR/NDRB information to Applicant.

971009:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]
971102:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the Nov promotion because of your unsatisfactory participation, specifically failure to attend scheduled drills. Applicant not available for signature.

971102:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation specifically failure to attend scheduled drills on 4 & 5 Oct 97.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for signature.

971201:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the Dec promotion because of your unsatisfactory participation, specifically failure to attend scheduled drills. Applicant not available for signature.

971215:  Officer in Charge/Inspector-Instructor, SMU, Supply Company, 4th Supply Battalion, 4th Force Service Support Group, Raleigh, NC via Commanding Officer, 4th Supply Battalion, Newport News, VA, recommended Applicant’s discharge with under other than honorable conditions by reason of misconduct in the Ready Reserve for unsatisfactory drill participation. Commanding Officer’s comments: “Private P_ (Applicant) is in an unsatisfactory drill status having missed and not attempted to make up twenty-eight (28) drills. Private P_ (Applicant) was mailed correspondence after each drill and given the opportunity to make them up in addition to being able to make a statement explaining his absence. He never desired to do either. In these letters Private P_ (Applicant) was instructed about the consequences of remaining in an unsatisfactory drill status, given specific recommendations for corrective action; advised that the Inspector-Instructor Staff and his Platoon Commander would work with him in any way possible to help him regain good drill status; and advised that failure to take corrective action could result in an administrative discharge. Private P_ (Applicant) was served his Letter of Notification, Acknowledgement of Rights Form and NDRB Form, by certified mail on 11 Sep 1997. Personal delivery was also attempted on 9 Oct 97. He has no potential for further military service, he does not possess a security clearance or have access to classified material.”

980207:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation specifically failure to attend scheduled drills on 6, 7 Dec 97.) Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for signature. [Note: Missing OIC’s signature.]
        
980316:  SJA review determined the case sufficient in law and fact.

980316:  GCMCA, Commander, Marine Force Reserve, New Orleans, LA, directed the Applicant's discharge with under other than honorable conditions by reason of failure to participate (reserve not on active duty (board waived)).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980326 by reason of unsatisfactory participation in the Ready Reserve (A, B, and C) with a service characterization of under other than honorable conditions. 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 (D and E).

The Applicant implies that his discharge was improper because he was not notified of intent to recommend administrative separation. Per the Statement of Understanding signed by the Applicant on 19950130, it is the Applicant’s responsibility to keep the command informed of his current address and phone number at all times. The records show that the Applicant was notified of intended recommendation for discharge via certified mail, return receipt requested on 19970911. What is more, on 19971009, the command made an unsuccessful attempt to personally deliver the notification of administrative discharge proceedings, acknowledgement of rights, and BCNR/NDRB information to the Applicant’s address of record. According to regulations (A), failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights. The Board found no impropriety in the discharge process and determined that the discharge was appropriately characterized. Relief on this basis is denied.

The Applicant suggests that his discharge was inequitable because he did not have transportation to attend drills. The NDRB recognizes that serving in the Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. The Applicant’s record shows that he had a total of 28 unexcused absences with no plans to make them up, in spite of his command’s numerous attempts to assist. The Board concluded that the Applicant’s service is equitably characterized, and no relief is granted on this basis.

Normally, to permit relief, a procedural impropriety or inequity must have existed during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. While 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 Marine Corps, the Board is authorized to consider 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. The Applicant submitted community college transcript Fall 1998, Spring 1999, and Summer 1999; Franklin County Criminal Record Check; and Certificates of Award, Appreciation, Achievement, and Completion from the Kittrell Job Corps Center. The Applicant is advised that his efforts need to be more encompassing to include proof of verifiable employment records, continuing educational pursuits, and documentation of community service. At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. And so, no relief is granted on this basis.

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 additional documentation to support 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 6-1 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

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

F. 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.

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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