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USMC | DRB | 2012_Marine | MD1200083
Original file (MD1200083.rtf) Auto-classification: Denied
ex-, USMCR
Current Discharge and Applicant’s Request
Application Received: 20111018
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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 Current Enlistment: 20021028     Age at Enlistment:
Period of E nlistment : Years Months [6x2 ROEP]
Date of Discharge: 20070625      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 10 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 29 D a y ( s )
 Education Level: 10 [GED]        AFQT: 54
MOS: 0842
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ,

Periods of U nauthorized A bsence / Periods of Confinement :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling : 0

Unsat Drill Participation Notifications: 6

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        


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

Applicant’s Issues

 Decisional issues : The Applicant contends that his discharge was inequitable due to contractual issues and administrative confusion that led to his failure to attend regularly scheduled drill periods as required by his Selected Marine Corps Reserve contract.

Decision

 Date : 20 1 2 0112            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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 NDRB 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 provided no additional documentation to rebut any presumption of regularity in the conduct of governmental affairs beyond his personal statement. The Applicant identified one decisional issue related to the equity of his discharge characterization for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service on an 8-year reserve obligation contract with a requirement to participate in the Selected Marine Corps Reserve program as an obligated drilling reservist for 6 years of his 8 year obligation. The Applicant signed a contract on 18 October 2002 , acknowledging his understanding 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. The Applicant successfully completed recruit training and his MOS school and was discharged from the Active Duty component on 26 April 2003 for further assignment with his designated Selected Marine Corps Reserve u nit. The Applicant’s record of service included no retention warning counselings, no non-judicial or judicial punishments, and no civilian convictions . However, it does reflect at least 49 missed drills with 20 of those missed scheduled drills having been incurred within the 12 months preceding his original notification of the proposed separation action . Upon discharge, the Applicant had completed 4 years and 2 months of the six-year contract in a drilling reserve status.

His c ommand notified the Applicant of their intention to process him for discharge after missing 4 months of unit drills (20 consecutive drills) . Based on the documentation of record, the command contacted the Applicant on numerous occasions after he became an unsatisfactory participant. In May 2006, the Applicant agreed to return to the unit, resume a drilling status, and complete his obligation. The reserve unit commander spoke to the Applicant directly and was assured by him that he would return to drill with the unit in preparation for an upcoming mobilization; he failed to do so. Shortly thereafter, the reserve unit was mobilized and deployed in support of Operation IRAQI FREEDOM (OIF). Upon return from the deployment and demobilization , the Applicant was again notified, by certified return receipt mail, of the proposed recommendation for his separation due to unsatisfactory participation in the Selected Marine Corps Reserve. The notification of proposed separation and the Applicant’s election of rights were mailed to the Applicant’s official home address , as contained in his service record , and were receipted for at that address. T he Applicant failed to respond to the command ’ s notification or to elect his rights ; the failure to acknowledge official certified mail constitutes acknowledgment and waiver of all rights (MARCORSEPMAN par. 6303). On 16 May 200 7, having failed to attend more than 9 scheduled drills or mobilize with his unit upon notification, the command endorsed their recommendation for administrative separat ion from the Marine Corps Reserve to the Separation Authority - Commander, Marine Forces Reserve. On 25 June 2007, the Separation Authority determined that the evidence of record supported the proposed discharge action and was sufficient in law and fact . Accordingly, he directed that the Applicant be discharged in accordance with paragraph 6213 of the MARCORSEPMAN due to Unsatisfactory Participation in the Ready Reserve , that he receive an Under Other Than Honorable Conditions characterization of his service, and that he receive an RE-4 reenlistment code (not r ecommended for reenlistment).

(Decisional Issues ) ( ) . The Applicant contends that his discharge was inequitable due to contractual issues and administrative confusion that led to his failure to attend regularly scheduled drill periods as required by his Select ed Marine Corps Reserve enlistment contract.

The record of service reflects that he was enlisted with an agreement to drill with a specified unit; however, his agreed upon Military Occupational Specialty (MOS), which he attended active duty training for, did not match that unit ’ s table of organization - as such, he was joined to the appropriate higher headquarters unit that rated his MOS. The NDRB found the Applicant’s issue to be without merit. The change in unit had no major affect upon that Marine, as each unit was located well away from his home of record. Moreover, the Applicant was release d from active duty for training in the Spring of 2003 and transferred to the drilling reserve - he subsequently attended drill for almost two years before beginning his pattern of unsatisfactory participatio n by failing to attend drill.

The NDRB recognizes that serving in the Marine Corps is challenging. M ost members of the Marine Corps and Marine Corps Reserve serve honorably and earn an H onorable discharge. In fairness to those service members, commanders and separation authorities are tasked to ensure that the undeserving receive no higher characterization than is due. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. However, a n Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.

The NDRB determined the Applicant’s conduct - failure to attend scheduled drill s despite numerous person al efforts by his leadership, coupled with his failure to mobilize with his unit when activated, were acts or omission s that did constitute a significant departure from the conduct expected of a service member . As such, the awarded characterization at discharge was appropriate , was warranted, and was and does remain consistent with similar discharge actions by the service. The NDRB found no error of fact, law, procedure, or discretion the might afford the Applicant relief. The Applicant was properly discharged U nder O ther T han H onorable C onditions d ue to unsatisfactory participation in the Re ady Reserve. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was both proper and equitable . It would be inappropriate to grant an upgrade. 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 . 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 Additional Reviews and Post-Service Conduct .

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 .



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 Disable d American 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 their 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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