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USMC | DRB | 2005_Marine | MD0501085
Original file (MD0501085.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. MD05-01085

Applicant’s Request
The application for discharge review was received on 20050614. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. Metropolitan area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB concluded that the characterization of service was improper and inequitable. The Board’s vote was unanimous that the character of service and reason for separation shall change to: HONORABLE/FULFILLMENT OF SERVICE OBLIGATION, authority: MARCORSEPMAN Par. 1005.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I serve all of active duty and Reserve commitment I serve all of Reserve active commitment. Before processing back to the states I was given the discharge date 10/92 in the desert (Operation Desert Strom).”
Documentation
Only the service record book was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

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: 19841127             Date of Discharge: 19940628

 Length of Service (years, months, days):

 Active: 01 01 28
          Inactive: 08 05 03

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

 Age at Entry: 18

 Years Contracted: 8

 Education Level: 12                                 AFQT: 38

 Highest Rank: Cpl                                   MOS: 0311

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (21)                               Conduct: 4.0 (21)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Rifle Marksman Badge, National Defense Service Medal, Sea Service Deployment Ribbon, Combat Action Ribbon, Southwest Asia Service Medal with 2 stars.


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 :

841126:  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 5 years upon completion of initial active duty training.
850325:  Applicant reported for initial tour of active duty for training.

850823:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

 850911:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl because of lack of maturity/leadership.

860720:  NJP for violation of UCMJ:
         Specification: In that LCpl E_ (Applicant) did having knowledge of a lawful order issued by Sgt T_ to report to a working party after chow, did at MCAGCC 29 Palms CA on or about 1910, 860715 disobey the same.
         Award: Forfeiture of $50 per month for 1 month, reduction to E-2. Not appealed.

870923:  Applicant signed extension of contract to meet eligibility for Selected Reserve Educational Assistance Program.

880911:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl in Oct because of lack of maturity/leadership.

901125:  Applicant ordered to active duty in support of Operation Desert Shield/Desert Storm.

910604:  Applicant released from active duty with an Honorable by reason of completion of required active service (involuntary recall).

910908:  NJP for violation of UCMJ, Article 92 (2 specs):
         Specification 1: On or about 910516 disobeyed a lawful verbal order from the Commanding Officer to return your DD Form 2MC (#740003) upon release from active duty, which you failed to do.
         Specification 2: On or about 910716 disobeyed a lawful written order from the Commanding Officer to immediately return your DD Form 2MC (#740003) which you failed to do.
         Award: Reduction to E-3. Reduction suspended for 6 months. Appeal submitted 910912. Appeal denied.

910915:  Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the 1st Quarter prom Oct period because of NJP held on 910908.

911113:  Reduction in pay grade awarded at NJP on 910908 vacated due to continued misconduct.

 920709:  Counseling: Advised of deficiencies in performance and conduct (PFT failure 920502 (run, score 199). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose not to make a statement.
920913:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of FY93 prom 1st Quarter because of lack of military bearing, lack of leadership skills.

921122:  Counseling: Advised of deficiencies in performance and conduct (Unsat drill attendance in October 1992). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant not available for signature.

921126:  Expiration of military service obligation per enlistment contract.

921203:  Applicant reduced this date for failure to attend ResTrng and did not make a statement.

930319:  Counseling: Advised of deficiencies in performance and conduct (Unsat drill attendance in January 1993). Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant reduced this date for failure to attend ResTrng. Applicant not available for signature.
930321:  Acknowledged understanding of eligibility but not recommended for promotion to LCpl for the FY93 prom month of March because of unsatisfactory drill attendance. Applicant chose not to make a statement.

930516:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the FY93 prom month of April because of being in a bad drill status. Applicant not available for signature.

930520:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the FY93 promotion month of May because of bad drill status. Applicant not available for signature.

930602:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the FY93 prom June because of bad drill status. Applicant not available for signature.

930801:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the FY93 prom Jul because of bad drill status.

930812:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the FY93 prom Aug because of bad drill status.

930922:  End mandatory drill status.

940409:  Acknowledged understanding of eligibility but not recommended for promotion to PFC for the FY94 prom Jan/Apr because of bad drill status. Applicant not available for signature.

 940419:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of unsatisfactory participation. The factual basis for this recommendation was your unexcused absence from scheduled drills on: 5 & 6 Feb 94; 27 Feb 94; and 8, 9 & 10 Apr 94.

 940420:  Affidavit of service by mail and attempted personal service. 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.
940517:  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).]
940520:  Commanding Officer/Inspector-Instructor, Co I, 3rd Bn 23d Marines, (via Commanding Officer/Inspector-Instructor, 3rd Bn 23d Marines, Commanding Officer, 23d Marines, 4th Marine Division, and Commanding General, 4th Marine Division (FMF)) recommended the Applicant’s discharge under other than honorable conditions by reason of unsatisfactory participation due to excessive unexcused absences from scheduled drills. Commanding Officer’s comments: “Private E_ (Applicant) is in an unsatisfactory drill status having been absent (unexcused) from eleven drills. Private E_ (Applicant) has an exceedingly prolonged history of unexcused absences from drill. This command has extended every effort imaginable to Private E_ (Applicant) in order to assist him regaining a satisfactory drill status. This is evidenced by the number of absences which have been made up through EIN’s. After every missed drill SNM was notified by mail and counseled concerning specific recommendations for corrective action and the assistance which is available through his chain of command. None of these efforts have been acknowledged by Private E_ (Applicant). On 21 April 94, Sgt P_, a member of the Inspector-Instructor Staff attempted to personally deliver enclosure (1) to Private E_ (Applicant) at his home address. There was no answer at the door. Therefore on 26 April 94 Enclosure (1) was mailed to SNM via certified Mail. This was returned unclaimed on 17 May 94. It is therefore the opinion of the undersigned that Private E_ (Applicant) has no potential for mobilization nor does he possess any capacity for further military service.”

940615:  SJA review determined the case sufficient in law and fact.

940617:  GCMCA, Commanding General, Marine Reserve Force, directed the Applicant's discharge as under other than honorable conditions by reason of failure to participate (reserve not on active duty).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940628 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 not proper or equitable (D and E). The Board presumed regularity in the conduct of governmental affairs (F).

The Applicant implies that his discharge was improper because he served all his active duty, active reserve and reserve commitment. The Applicant signed an 8-year U.S. Marine Corps Reserve contract on 19841127, resulting in an end of contact date of 19921126. On 19870923, the Applicant agreed to extend his mandatory drill date to 6 years in order to become eligible for the Selected Reserve Educational Assistance Program. Since this agreement changed his mandatory drill date to 19930922 (past his end of contract date of 19921126), the Applicant was required to extend his contract obligation to at least 19930922. The Applicant’s records indicate that he continued to drill to the end of his mandatory drill date. While an extension of contract is not contained in his records, the Board presumed regularity since the Applicant continued to attend drills until 19930922.

In the notification of intent to recommend discharge, the Commanding Officer indicated that the Applicant missed eleven (11) drills (5 and 6 February 1994; 27 February 1994; and 8, 9 and 10 April 1994). These dates are beyond the Applicant’s end of mandatory drill date of 19930922. In order for the government to presume that the Applicant signed reenlistment contract, there must not exist any contradictory documentation in his records. It is instructive to note that on 19940205, the command audited the Applicant’s administrative records. The audit process did not identify a reenlistment contract since the end of obligation date (19921126) on the Reserve Basic Individual Records page was not updated. This is sufficient to challenge the presumption of regularity. The Applicant should have been discharged on 19930922.

In over nine years of service and on 21 markings, the Applicant maintained average proficiency and conduct marks of 4.3 and 4.3, respectively. The Applicant honorably served during involuntary recall to active service in support of Operation Desert Shield/Desert Storm, earning a Combat Action Ribbon. The Board unanimously voted to upgrade the Character of Service to Honorable and change the Narrative Reason for Separation to Fulfillment of Service Obligation.




 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 P1001R.1J.

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 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, Para 211, Regularity of Government Affairs .

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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