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USMC | DRB | 2009_Marine | MD0901281
Original file (MD0901281.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090416
Characterization of Service Received:
Narrative Reason for Discharge: UNSATISFACTORY PARTICIPATION IN READY RESERVE
Authority for Discharge: MARCORSEPMAN 6213 UNSATISFACTORY PARTICIPATION IN READY RESERVE

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: NONE             Active:  

Period of Service Under Review:
Date of Enlistment: 2003 0430     Age at Enlistment:
Period of E nlistment : 8 Years Months
Date of Discharge: 20050630      H ighest Rank:
Length of Service:
         Active:  Y ea r ( s ) M on th ( s ) 16 D a y ( s )
         Inactive:        Y ea r ( s ) M on th ( s ) 15 D a y ( s )
 Education Level:        AFQT: 86
MOS: 6672
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

         20050212 : The Applicant was administratively reduced to PFC/E-2 after a Competency Review Board (CRB) was held. The Applicant was not present at the CRB, although he was sent a notification on 21 January 2005.

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 200 4 1003 :       For Unsatisfactory Participation in the Selective M arine Corps Reserve and had 9 unexcused absences. The Command Officer plans to administratively separate you.

- 20050213 :       For Unsatisfactory Participation in the Selective Marine Corps Reserve and unexcused absences will not be tolerated.

- 20050 4 0 2 :       For Unsatisfactory Participation in the Selective Marine Corps Reserve and unexcused absences will not be tolerated.




Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214: Service / Medical Record: Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:        From Representat ion :   From Congress member :
Other Documentation :


Pertinent Regulation/Law

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
1 September 2001 until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



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

Applicant’s Issues

 1. Applicant claims he was released from unit by the commanding officer to enter active duty service.
2. Applicant claims mismanagement of records, discriminatory policies and unsound communication by Marine Corps.
3. Applicant claims certified correspondence from unit was not postmarked to his home address.

Decision


 Date: 20 0 9 1203           Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall UNSATISFACTORY PARTICIPATION IN READY RESERVE .

Discussion
The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant’s record of service included 6105 counseling warnings pertaining to his unsatisfactory participation in the Selective Marine Corps Reserve. The Applicant was being processed from the Marine Corps Reserves due to missing 9 drills although he actually had accumulated over 26 missed drills since March 2003. Based on the Applicant ’s unsatisfactory participation and his unwillingness to rectify the situation , command administratively processed for separation. The command made every reasonable effort to notify the Applicant of his pending a dmi nistrative s ep aration p rocess. The Applicant never responded to correspondence, thus waiving rights to consult with qualified counsel, to submit a written statement for consideration by the separatin g authority, and to request an a dministrat ive b oard.

: (Decisional) ( ) . The Applicant contends his unit’s mismanagement of his records, discriminatory policies and unsound communication led to his unfavorable discharge. First, the Applicant claims that he was not attached to MALS-42 at the time of discharge and that the commanding officer released him to enable him to enter active duty by means of a prior service recruiter . In reviewing this contention, the NDRB noted that the same commanding officer who the Applicant claimed was posturing him for active duty had recommended the Applicant be administratively discharged with an Under Other Than Honorable conditions for failure to drill .

On 28 April 2003, p er the Statement of Understanding (SOU) Upon Enlistment of the Marine Corps Reserve Optional Enlistment Program (ROEP) , the Applicant initialed and signed the document stating, “I understand that for the next 6 years following assignment to Initial Active Duty Training ( IADT ) , satisfactory participation consists of attendance at and satisfactory performance of 48 scheduled Inactive Duty Training (IDT) periods (usually one weekend per month) and not less than 14 days of Active Duty Training (ADT) during each year of my contract …I also understand that my failure to attend IDT and ADT periods could result in a less than honorable discharge. ” From 30 April to 15 November 2003, the Applicant served hi s IADT and was discharged with an Honorable discharge. He was subsequently transferred to the Reserves (MALS-42) in which he was then obligated to perform his IDT and ADT for the next 5 years .

Per the Marine Corps regulations, a Marine can be processed out if he misses 9 drills within any given 12 month period . The Applicant was absence from drills in October, November and December 2004, which prompted attempted communication and correspondence to him from his unit , using the contact phone numbers and address he provided to the unit. Referring to the above contract that the Applicant signed, it clearly notes , “I understand that I must keep my Commanding Officer/Site Commander informed of my current address and phone number at all times. If I change my place of domicile, I must join another Marine Reserve unit located within the standard 100-mile radius from my new place of domicile.” The NDRB noted that the address used by the command to attempt communications was the same as th at on the Applicant’s enlistment application and D D 214 (discharge paperwork) . The NDRB opined that it was the Applicant’s responsibility to ensure the command ha d the proper contact information. The NDRB also noted in the A pplicant’s record that hi s mother returned a phone call to the command on 9 December 2004, stating she was trying to “ convince ” the Applicant to contact the command. On 29 December 2004, the Applicant made contact with his unit --evidence that the command ’ s attempts to communicate with the Applicant were well-placed . The command then arranged for him to make-up the missed drills, but he failed to show up to any of the rescheduled drills . I t is the NDRB’s opinion that the command was extremely flexible in attempting to help the Applicant meet his obligation. The NDRB determined that the command made a reasonable effo rt to get the Applicant to drills and to avoid the outcome that transpired and that the Applicant made little to no effort to meet his obligation to the Marine Corps. Therefore, the NDRB determined that the Applicant’s separation was warranted due to unsatisfactory participation.

In his application, t he Applicant referred to discriminatory policies on behalf of the command, but offered no further detail or information on this matter . The NDRB found no evidence of any discriminatory practices on behalf of the command. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain UNSATISFACTORY PARTICIPATION IN READY RESERVE. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additi onal Reviews and Post-Service Conduct .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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