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

 ex-PFC, USMCR
Docket No. MD00-00125

Applicant’s Request

The application for discharge review, received 991102, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293, but later designated the American Legion as his representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/Failure to Participate (Reserve not on active duty) (administrative discharge board required but waived), authority:  MARCORSEPMAN 6213.

The NDRB did note an administrative error on the original DD Form 214.  Block 12a,  Date Entered AD This Period should read: “82 01 20” vice “82 01 06”.  Block 12 c, Net Active Service This Period should read: “00 05 21” vice “ 00 06 06”. The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity issue)  This former member avers that abuse by his command induced him to stop attaining drills.  On the basis of these extenuating circumstances, he opines that upgrade of his character of service to honorable is warranted.

2.  (Equity issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174c., Enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

American Legion's ltr of 11 Apr 2000
Applicant's Discharge Certificate (DD FORM 794MC) dted 18 Dec 84
Copy of DD Form 214 (2 copies)
American Legion's ltr to the Applicant dated 29 Feb 2000
Amarillo Police Report dtd 3/14/00
Character Reference letter from friend, R_ C_
Character Reference letter from A_ R_
Letter of Employment from Whit-Co, M_ F_ dtd 3-9-00

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  820106		Date of Discharge:  841218

Length of Service (years, months, days):

	Active:    00  05  21
	Inactive:  02  06  01

Age at Entry:  20			Years Contracted:  6

Education Level:  9			AFQT:  22

Highest Rank:  LCPL

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.2 (8)			Conduct:  3.2 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

820105:	Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 17days of annual training per year or perform annually not more than 30 days of active duty for training for 6 years upon completion of initial active duty training.

820129:	NJP for violation of UCMJ, Article 86:  at 1230, SNR did willfully absent himself from his appointed place of duty, to wit:  Plt 1012, and did remain so absent until 1300, 820129.  
Awarded forfeiture of $104.00 per month for 1 month, 7 days correctional custody with suspended from duty.  Not appealed.

831016:	Counseled that member is not being recommended and C/S not computed for the Dec 83 LCPL to CPL promotion period because did not pass the EST administered on 821205 and subsequently failed the makeups afforded on 830717 and 830918.

840204:	Counseled concerning deficiencies (failure to complete 1 MCI Lessons). Necessary corrective actions explained, sources of assistance provided, disciplinary warning issued.

840708:	Certified letter mailed informing applicant of mandatory participation requirements of being a mandatory participant of the U.S. Marine Corps Reserve and the consequences of noncompliance.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

840711:	Return Receipt Card was returned to unit.  Letter was receipted for (but not by the member) on 840710.

840804:	Member has not resolved his missed drills of 870707 and 840708 and was absent without excuse from competent authority from unit's ATD period of 840721-840804 and administratively reduced to next lower grade (PFC).

840808:	Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was attempted to be personally delivered by 1stSgt D. W_ and GySgt T.P. F_ to member's last known address.  Member not home and this was subsequently sent via certified mail, return receipt requested.  Letter returned via the Postal Service undelivered to the member.  Reason for this undelivery was annotated on the envelope as "Unclaimed".  [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]

841018:	Unit notified, by CG, that member did not meet the qualifications for discharge at this time.  Had not missed sufficient drills.

841024:	Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training by reason of unexcused absences from 14 scheduled drill periods and from ATD, was attempted to be personally delivered this date by GySgt F and__ and SSgt F__ to member’s last known address.  Member not home and this was subsequently sent via certified mail, return receipt requested.  Letter returned via the Postal Service undelivered to the member.  Reason for undelivery as annotated on envelope as “Unclaimed”.  [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).      

841121:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve.  The factual basis for this recommendation was due to his unexcused absence from fourteen scheduled drills and his unexcused absence from this unit's scheduled Annual Training duty (ATD) period of 21 July - 4 August 1984. 

841129:	SJA review determined the case sufficient in law and fact. 

841212:	GCMCA [GC, 4TH MARDIV (REIN)] directed the applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 841218 under other than honorable conditions for misconduct due to unsatisfactory participation in the Ready Reserve (A, B, and C).  The Board presumed regularity in the conduct of governmental affairs (D).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (E and F).

The applicant’s representative submitted the following as issue1: (Equity issue)  This former member avers that abuse by his command induced him to stop attaining drills.  On the basis of these extenuating circumstances, he opines that upgrade of his character of service to honorable is warranted.  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Marine Corps, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

The applicant’s representative submitted the following as issue 2: (Equity issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  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, an error or injustice 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 three letters of recommendation as documentation of his post-service.  The applicant's efforts needed to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record and documentation of community service in order for consideration for clemency based on post-service conduct. The applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, effective 15 Apr 84 until 26 Jun 89) states that a Marine may be separated for unsatisfactory participation in the Ready Reserve under criteria established in MCO P1001R.1E.

B.  Marine Corps Reserve Administrative Management Manual, MCO P1001R.1E.

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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

F.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023