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USMC | DRB | 2006_Marine | MD0601165

Original file (MD0601165.rtf) Auto-classification: Denied

ex-, USMC
MD06-01165

Current Discharge and Applicant’s Request:

Application Received:                               20 060829
Characterization of Service:
Narrative Reason for Separation:         FAILURE TO PARTICIPATE (RESERVE NOT ON ACTIVE DUTY (BOARD WAIVED)
Discharge Authority :                                MARCORSEPMAN 6213
Last Duty Assignment/ Command at Discharge:       Detachment commander, Marine AIR CONTROL SQUADRON 24, FORT WORTH, TEXAS

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
Representation:

Applicant’s issues:
1. Reenlistment opportunities.
2. Unfair discharge characterization due to record of service.
3. Post service.

Decision:

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of the Narrative Reason shall FAILURE TO PARTICIPATE

Date of Decision:                                            20070802
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:      PROPER
Regarding equity, the Board found the discharge:         EQUITABLE

Issue 1: The Board determined that th is I ssue is not an i ssue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding this issue.

Issue 2 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A n 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’s service was marred by repeated and voluntary absences from schedule drills. An upgrade to honorable would be inappropriate.

Issue 3 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided documentation of employee based training and certifications as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing . For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive:                                            NONE
Active:                                              19970707-19971030        HON
                                                      19971105-19980211        HON
Period of Service Under Review:
Date of Enlistment:                                 19960911
Years Contracted :
Date of Discharge:                                  20010611
Length of Service
         Active:                                     00 Yrs 10 Mths 27 D ys (Does not exclude lost time)
Time Lost During This Period:


Education Level:
Age at this Enlistment:
AFQT:                                                 62
MOS:                                                  7253
Highest Rank:

Proficiency/Conduct marks (# of occasions):               3.9 (8) / 3.7 (8)

Awards and Decorations (as listed on the DD Form 214):   RIFLE SHARPSHOOTER BADGE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19960911:        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.

20000 5 24:        Applicant notified of unsatisfactory participation in the selected Marine Corps reserve. Consequences for failure to participate, including administrative separation proceedings for discharge under conditions of other than honorable explained. Correspondence was returned UNCLAIMED on 20000608.

20001202:        Applicant notified of administrative reduction to PFC for unsatisfactory participation of reserve training.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       200 10116 (SIGNED FOR 20010215)
Basis for Discharge:

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 DID NOT RETURN
Rights Elected at Notification:
         Consult with Counsel                       DID NOT RETURN
         Obtain Copies of Documents                 DID NOT RETURN
         Submit Statement(s) (date)                         DID NOT RETURN
         Administrative Board                       DID NOT RETURN

Commanding Officer Recommendation (date):        ( 20010302 )
SJA review (date):                                  ( 20010511 )
Separation Authority (date):     COMMANDER, MARINE FORCE RESERVE ( 20010611 )
Narrative Reason directed:       FAILURE TO PARTICIPATE (RESERVE NOT ON ACTIVE DUTY (BOARD WAIVED)
Characterization directed:
Date Applicant Discharged:                         20010611

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            125
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             2
Other Documentation (Describe Below)                      1 6

Total Number of Pages:                            14 3

D escription of Other Documentation:
        Applicant's service records on a CD
         Letter to applicant from Headquarters United States Marine Corps
         Form SF 180, Request Pertaining to Military Records
         Certificate for Emergency Medical Technician - Paramedic
         Certificate for Emergency Medical Technician - Paramedic
         Applicant’s card for EMT-P
         Applicant’s results of Texas Department of Health exam
         Certificate of completion of 80 hour EMT Paramedic Refresher
         Certificate of completion of Paramedic Training
         Certificate of completion of EMS for Children - Pediatric Prehospital Provider Course
         Texas Department of Health, Skills Proficiency form for recertification candidates
         Applicant’s resume
         ACLS Prov ider card, Heartsaver CPR card
         Baylor Medical Center at Garland card
         Certificate for Basic Trauma Life Support
         Verification of attendance

Pertinent Regulation/Law

A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until
31 August 2001.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C . 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 V, Para 502, Propriety and Para 503, Equity.

ADD DENDUM: Information for the Applicant

Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 Naval service. The NDRB 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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USMC | DRB | 2006_Marine | MD0601165

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