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USMC | DRB | 2005_Marine | MD0501418
Original file (MD0501418.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. MD05-01418

Applicant’s Request
The application for discharge review was received on 20050824. 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 designated a civilian counsel as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060524. 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 and/or from an attached document/letter to the Board:

“See attached Continuation of DD 293. My discharge Under Other Than Honorable Conditions was contrary to law and regulation as set forth in the attached memorandum from counsel.”

Additional issues submitted by Applicant’s counsel/representative (civilian counsel):

 “R_ T. C_(Applicant), by and through his undersigned counsel, requests that this Honorable Board correct his Naval Record and discharge characterization from the Marine Corps Reserve in the following particulars:

1. Set aside the Other Than Honorable characterization of discharge and substitute therefore a discharge of Honorable and issue a discharge certificate showing that Private C_(Applicant) was honorably discharged from the Marine Corps Reserve.

2. Forward this Application to the Board for Correction of Naval Records for removal of all references to the administrative discharge and characterization of discharge issued to Private C_(Applicant) on or about 6 August 1993.

The legal, regulatory and equitable bases for this request are set forth herein.
Facts Relevant to Application

 Former Private R_ C_(Applicant), USMCR, served on active duty in the United States Marine Corps intermittently from November 1989 to May 1991. While on active duty, Mr. C_(Applicant) served in the infantry as a TOW gunner and was deployed to Operation DESERT SHIELD/DESERT STORM from November 24, 1990 through May 13, 1991. See DD 214s (Tab 1). Mr. C_(Applicant) was later recalled to active duty and served another period of active duty from July 29, 1991 through December 8, 1991. See DD 214 (Tab 2). Id.

 On or about 7 March 1993, Marine Corps records show that then Private C_(Applicant) was processed for administrative discharge from the United States Marine Corps Reserve on grounds of “unsatisfactory participation.” Private C_(Applicant) was discharged from the Marine Corps Reserve on or about 6 August 1993.



Title 10 of the United States Code, § 12685, provides that a member of the Reserve component may not be separated for cause, and may not be issued a discharge characterization other than fully “honorable” unless dropped from the rolls pursuant to 10 U.S.C. § 12684, punitively discharged pursuant to a court-martial sentence, or the member consents to such discharge with a waiver of proceedings of a court-martial or board of officers. See 10 U.S.C. § 12685.

In the paperwork contained in Mr. C_(Applicant)’s OMPF, there is no indication that the required Board of Officers was conducted prior to discharge of Mr. C_(Applicant) from the Marine Corps Reserve. There is no affirmative waiver of an administrative discharge board or board of commissioned officers contained in Mr. C_(Applicant)’s OMPF.
Discussion

The law regarding administrative separation of members of the Reserve component provides, as follows:

A member of a reserve component who is separated for cause, except under section 12684 of this title, is entitled to a discharge under honorable conditions unless-

(1) the member is discharged under conditions other than honorable under an approved sentence of a court-martial or under the approved findings of a board of officers convened by an authority designated by the Secretary concerned; or

(2) the member consents to a discharge under conditions other than honorable with a waiver of proceedings of a court-martial or a board.

10 U.S.C. § 12685. In this case, the Marine Corps discharged Mr. C_(Applicant) from the Marine Corps Reserve with an Other Than Honorable Conditions characterization of discharge. Although required by law before he could be discharged from the Reserve component with any characterization of discharge other than fully “honorable”, no Board of Officers was conducted in Mr. C_(Applicant)’s case.

The statute in this case could not be more clear: it requires consent to a discharge with a waiver of proceedings of a board. No such consent or waiver was obtained from Mr. C_(Applicant). See R_ T. C_(Applicant) Declaration (Tab 2). His discharge with an Other Than Honorable characterization of discharge, therefore, was unlawful.

Apparently, in discharging Mr. C_(Applicant), the Marine Corps relied on some theory of constructive waiver of consent and actual notice not contained in the governing statute. If that is the case, then it is equally obvious that such a claim must fail. First, there is no provision in the statute for other than actual consent to discharge with a characterization of other than honorable. The statute requires both actual consent to the characterization less than honorable and a waiver of the administrative discharge board, neither of which was obtained in this case.1


Second, it is clear that the governing regulation relating to constructive notice was not complied with in this case. According to MCO P 1900.16, before constructive notice can be inferred, specific procedures must be followed. Those procedures require the following:

1. The notice shall be delivered personally to the respondent or sent via certified mail, return receipt requested.

2. If the member refuses to acknowledge receipt of notice, the individual who mails the notification shall prepare a sworn affidavit of Service by Mail which will be inserted on the document side of the member’s service record together with the PS Form 3800.

See MCO P1900.16 ¶ 6303.4b(5) (emphasis supplied).

In the case of Private C_(Applicant), there is no PS Form 3800 contained in his military record. This PS Form 3800 is the proof of mailing and acceptance of the certified mailed matter by the United States Postal Service. When certified mail is accepted for mailing, the PS Form 3800 is stamped by the postal official who receives the package and returns the stamped portion of the document to the mailer to retain. See http://pe.usps.gov/text/dnm~S912.htm (explaining the purposes of PS 3800). An example of PS Form 3800 is attached hereto at Tab 3.

The Marine Corps Order governing service by mail requires to be filed in the member’s military record both the Affidavit of Proof of Mailing along with the PS Form 3800 which establishes that the certified mail material was received by the United States Postal Service for delivery. Moreover, the same regulation requires that in the event the certified mail letter is NOT delivered to the member, as alleged in this case, the envelope showing postal stamps and markings indicating the reason for no delivery must be attached to the Affidavit of Service. See Figure L-1, MCO P 1900.16. Neither the PS Form 3800 nor the envelope with postal stamps and markings is contained in Mr. C_(Applicant)’s Official Military Personnel File.

In this case, constructive service cannot be inferred, even under the defective Marine Corps regulation, because the PS 3800 was not filed as is required by the regulation nor was the allegedly non-delivered envelope with postal stamps and markings attached to the Affidavit of Service by mail as is required by governing Marine Corps regulations. Accordingly, coupled with the Declaration of Mr. C_(Applicant), that he did not receive either postal notice of a certified mail notification or the actual notification, Mr. C_(Applicant) cannot be held to have been constructively notified of his right to a board and to have waived it, nor can the marine Corps rely on the presumption of regularity to support the deviation from law and regulation. Accordingly, pursuant to the provisions of 10 U.S.C. 9112685 it constituted legal error to discharge Mr. C_(Applicant) with a characterization of discharge other than fully “Honorable.” Accordingly, Mr. C_(Applicant), through his undersigned counsel, requests that this Board grant him the relief he requests.
Conclusion

Based upon the foregoing, R_ T. C_(Applicant), by and through his undersigned civilian counsel, requests that this Board grant him the following relief:

1. Set aside the Other Than Honorable characterization of discharge and substitute therefore a discharge of Honorable and issue a discharge certificate showing that Private C_(Applicant) was honorably discharged from the Marine Corps Reserve.

2. Forward this Application to the Board for Correction of Naval Records for further corrective action including, but not limited to, removal of all references to the administrative discharge and characterization of discharge issued to Private C_(Applicant) on or about 6 August 1993.

____________________
1MCO P1900.16 changes this conjunctive requirement of consent with a board waiver to consent or a board waiver. The regulation clearly is contrary to law in that it does not require consent and (i.e., “with”) a board waiver, as required by the statute.

Respectfully submitted,
Signed by civilian counsel
C_ W. G_
(VA State Bar # deleted)
Law Offices of C_ W. G_, P.C.
Address and phone number deleted
Counsel for R_ T. C_ (Applicant)”

 Submitted by representative subsequent to submission of application:

 “ My discharge was contrary to law and regulation. No administrative Board was conducted prior to discharge as is required by law and regulation. No actual notice was provided to Mr. C_(Applicant) as would permit an implied waiver of the Admin Discharge Board. COnstructive notice was not established because the USMC failed to document and establish constructive waiver as provided in the governing Marine Corps Order. Therefore, discharge with an UOTH characterization was inappropriate and Mr. C_(Applicant) should have been discharged with an Honorable characterization, as type warranted by service record. ”
Applicant’s Remarks: (Taken from the DD Form 293.)

See DD.Form 293. Through counsel, undersigned requests to review and comment on any applicable advisory opinions provided by non-voting members of the NDRB.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 for period ending May 24, 1990
Applicant’s DD Form 214 for period ending May 13, 1991
Applicant’s DD Form 214 for period ending December 8, 1991
Declaration from Applicant, dtd August 19, 2005

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: 19890803             Date of Discharge: 19930806

 Length of Service (years, months, days):

 Active: 01 04 04
          Inactive: 02 08 00

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

 Age at Entry: 23

 Years Contracted: 8

 Education Level: 12                                 AFQT: 42

 Highest Rank: LCpl                                  MOS: 0352
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 3.9 (6)                                Conduct: 4.0 (6)

 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, Southwest Asia Service Medal, Meritorious Unit Commendation, Combat Action Ribbon, Kuwait Liberation Medal


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 :

891121:  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.
891122:  Applicant reported for initial tour of active duty for training.

900524:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

 900712:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation due to failure to report for IDT on 6 July 90.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Counseling letter mailed on 900716 via certified mail #P07082611, return receipt requested.

 901124:  Applicant reported for active duty.

910513:  Applicant released from tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

910729:  Applicant reported for active duty.

911208:  Applicant released from tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.
920112:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation due to failure to report for drill on 6 th , 7 th and 8 th Dec 91.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. Applicant chose to make a statement.

930108:  Acknowledged understanding of eligibility but not recommended for promotion to Cpl due to lack of maturity. Applicant chose not to make a statement.

930207:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation due to the failure to report for drill, on the 5 th , 6 th , and 7 th of February 93.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Not signed by Applicant.]

930307:  Counseling: Advised of deficiencies in performance and conduct (Unsatisfactory participation due to the failure to report for drill, on the 5 th , 6 th , and 7 th of March 93.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. [Not signed by Applicant.]

930307:  Applicant notified of intended recommendation for discharge by reason of unsatisfactory participation with a characterization of service as under other than honorable conditions. The factual basis for the discharge is unsatisfactory participation and failing to attend regularly scheduled drills. Unit records show that the Applicant has failed to attend regularly scheduled drills, without excuse from competent authority, on the following dates: 5 -7 February 93 and 5 - 7 March 93. Applicant notified by certified mail #P653104271.

930405:  Affidavit of Service by Mail. Sgt R_ L.F_, Discharge Clerk of D Co, 4 th Light Armored Infantry Battalion, states that on 930405 he personally mailed the original Notification of Separation Proceedings dated 930307, the Acknowledgement of Rights form, and the Purpose and Scope of the Navy Discharge Review Board and Board for Correction of Naval Records form, by certified mail, using CERTIFIED MAIL NO. P653104271 to Pvt R_ T. C_ (SSN deleted)/0352 (Applicant), (address listed but deleted), that being the last known mailing address given to D Co, 4 th LAIBn as the one at which official mail would be received by or forwarded to the Marine by depositing the same in an official depository of the U.S. Postal Service located at Bldg 716 MCCDC Quantico, VA 22134-5000 in a securely wrapped and sealed U. S. Government official postal envelope addressed to the member at the address provided. A receipt for Certified Mail (PS Form 3800) attesting to such action is attached. [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).]






930605:  Commanding Officer/Inspector Instructor D Company, 4 th Light Armored Infantry Battalion, 4 th Marine Division, (Rein) FMF recommended via Commanding Officer, 4 th Light Armored Infantry Battalion Applicant’s discharge under other than honorable conditions by reason of unsatisfactory participation in the Ready Reserve by failing to attend 20 regularly scheduled drills without excuse from competent authority. Commanding Officer’s comments: “Several attempts to reach PFC C_(Applicant) via telephone calls to both his home and his place of employment were made by Sgt B_ W_, of this unit, between 22 Mar and 27 Mar 1993. Sgt W_ left messages on PFC C_(Applicant)’s answering machine which included the nature of his call and his home and work numbers, none of Sgt W_’s calls were returned. Also during the same period, Sgt W_ stopped twice at PFC C_(Applicant)’s address but no one was home. On 5 Apr 1994, the entire package was mailed certified mail to PFC C_(Applicant)’s last known address. The package was returned on 26 Apr 1993, unopened, and stamped “returned to sender, unclaimed”, the certified receipt was missing. Every reasonable effort has been made to bring this Marine back to a satisfactory drill status. PFC C_(Applicant) has made a conscious decision not to meet his military obligation despite understanding the consequences. He has accumulated numerous unexcused absences from IDT periods as well as failed to keep the CO informed of his current mailing address and phone number. His irresponsible attitude and behavior has completely negated his mobilization potential and his potential for further service would not be in the best interest of the Marine Corps. It is strongly recommended that this Marine be separated. As of the forwarding of this endorsement SNM has missed a total of 20 drills.
930623:  Commanding Officer/Inspector-Instructor, 4 th Light Armored Infantry Battalion, forwarded and recommended approval of the Commanding Officer/Inspector-Instructor D Company, recommendation for the Applicants discharge by reason of unsatisfactory performance. CO’s comments: “Since the date of Pvt C_’s (Applicant) discharge recommendation, he has missed 4 additional drills for a total of 24 drills.”

930630:  SJA review determined the case sufficient in law and fact.

930630:  GCMCA, Marine Reserve Force directed the Applicant's discharge under other than honorable conditions by reason of failure to participate (Reserve not on active duty) admin discharge board required but waived.




930806:  Commanding Officer, 4 th Light Armored Infantry Battalion, 4 th Marine Division, notified Applicant that the recommendation that he be administratively discharged by reason of failure to participate with a characterization of under other than honorable conditions, has been approved.       




PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930806 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 available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E). The Board presumed regularity in the conduct of governmental affairs (F).

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’s counsel states that per 10 U.S.C. 12685 “a member of the Reserve component may not be separated for cause, and may not be issued a discharge characterization other than fully honorable unless dropped from the rolls pursuant to 10 U.S.C. 12684, punitively discharged pursuant to a court-martial sentence, or the member consents to such discharge with a waiver if proceedings of a court-martial or board of officers”. The Board determined that the requirements set forth in 10 U.S.C. 12685 did not apply in this case since the Applicant was administratively separated for unsatisfactory participation in the Ready Reserve; he was not separated “for cause.” According to the Marine Corps Separation and Retirement Manual (MARCORPSEPMAN) the characterization of service as under other than honorable conditions is authorized when discharged for unsatisfactory participation in the ready reserve. Relief denied.

The Applicant’s counsel contends that “there is no affirmative waiver of an administrative discharge board or board of commissioned officers contained in Mr. C (Applicant’s) OMPF.” The Applicant’s service record contains a “Affidavit of Service by Mail” wherein the unit Discharge Clerk states that he personally mailed the original Notification of Separation Proceedings dated 930307, the Acknowledgement of Rights form, and the Purpose and Scope of the Navy Discharge Review Board and Board for Correction of Naval Records form, by certified mail, using CERTIFIED MAIL NO. P653104271 to the Applicant. The certified mail was sent to the last known address provided by the Applicant to the unit. The certified mail was returned to the unit, unopened, but the return receipt was missing. According to MARCORSEPMAN par. 6303, the failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights, to include the right to appear before an administrative separation board. In addition to the certified mail, the Commanding Officer states that several phone messages were left on the Applicant’s answering machine but the Applicant did not return the calls. Relief denied.






When the service of a member of the U.S. Marine Corps Reserve 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. T he Applicant failed to attend regularly scheduled drills (unexcused absences from inactive duty training) on the following dates: 19930205, 19930206, 19930207 and 19920305, 19920306, 19930307. According to the Marine Corps Reserve Administration Management Manual (MCRAMM), a member of the USMCR, with a mandatory participation requirement, is considered an unsatisfactory participant when the Reservist acquires at least nine unexcused absences. At the time that the Commanding Officer/Inspector-Instructor, 4 th Light Armored Infantry Battalion, forwarded the recommendation for the Applicant’s discharge, t he Applicants had accumulated a total of 24 unexcused absences from inactive duty training. In addition, to the unexcused absences, the Applicant received a retention warning and a non-recommendation for promotion. 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 Reserve and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

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 additional evidence related to this 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 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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