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

 ex-LCpl, USMCR
Docket No. MD01-00420

Applicant’s Request

The application for discharge review, received 010213, 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010822.  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/UNSAT PARTICIPATION IN READY RESERVE, authority:  MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The Undesirable Discharge I received on 991118 was an unfortunate case of miscommunication and ignorance on my part.  I will not attempt to place blame, but rather explain my position and actions.  As you will see in review of my records I was an above average Marine who suffered an unfortunate knee injury while in boot camp and then re-injured the same knee while training with my reserve unit.  After lengthy rehabilitation and therapy my knee was still not up to par.  Although my records further indicate I was released for duty by competent medical authority I continued to seek a discharge based on my injury status.  The private doctor stated in his report that further activities that would require carrying heavy loads for extended periods of time would likely permanently damage the knee.  I communicated this with my command and sought guidance in this matter.  None was provided and I am quite sure my requests are no where to be found in your records.  I was not seeking compensation or benefits from the military.  I simply wanted to be released from duty or discharged from the Marine Corps.  During this evolution of events my mother had a tragic medical condition that led to her untimely death.  This combined with my job stress as a State Trooper led to an extremely poor decision on my part.  I was in a state of depression and denial and this did not facilitate good judgment.  Unfortunately I cannot change the past.  I wanted to serve my country as a Marine and as a police officer to the best of my abilities.  I continue to strive to improve myself through education and have just finished up my bachelors degree and plan on attending law school in the fall of 2000.  I have also applied for a position with the Louisville, KY. city police department where my pursuit for a law degree will be more encouraged than it was with the state police.  As I am sure you are aware a discharge Under Other Than Honorable Conditions will prevent me from pursuing my employment with the city police and my pursuit of a law degree.  If I cannot get this discharge upgraded to Honorable I have no chance of being the successful, productive citizen I have worked so hard to become.  I hope you will take these facts into consideration when making your decision.  Thank you for your time and attention to this matter.

Documentation

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

Copy of Associate of Science degree dated May 7, 1994
Copy of certificate from State of Indiana, Law Enforcement Training Board dated December 13, 1996
Copy of certificate dated December 13, 1996

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:  940928		Date of Discharge:  991118

Length of Service (years, months, days):

	Active:    00  10  09
	Inactive:  None

Age at Entry:  23			Years Contracted:  8

Education Level:  15			AFQT:  79

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  0.00 (0)		Conduct:  0.0(0)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/UNSAT PARTICIPATION IN READY RESERVE; authority:  MARCORSEPMAN 6213.

Chronological Listing of Significant Service Events:

940928:	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.

981006:	Commanding officer notified the applicant of unsatisfactory drill participation via certified letter.

981019:	Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail, return receipt requested.  Applicant receipted for letter by return signature but failed to acknowledge the contents.  The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).

981019:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

981119:	The applicant did not return the Acknowledgment of Rights within the time limit indicated on the notification letter.

981120:	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 missed drill dates and number: 11-12 January 1997 (4), 31 January 1997 (1), 1-2 March 1997 (3), 6-8 June 1997 (5), 5-7 September 1997 (5), 1 November 1997 (1), 5-7 December 1997 (5), 10-11 January 1998 (4), 6-8 February 1998 (5), 6-8 March 1998 (5), 3-5 April 1998 (5), 1-3 May 1998 (5), 11-13 September 1998 (5), 2-4 October 1998 (5), 7 November 1998 (1) and 1998 Annual Training.  Applicant has accumulated over 59 unexcused absences.

990707:	Commanding Officer/Inspector Instructor forwarded, recommending approval of recommendation for administrative discharge.

990806:	Commanding Officer, 24th Marines 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 accumulated 82 unexcused absences from inactive duty training during the period of 6 June 1997 through 6 June 1999.

991018:	GCMCA [Commander, Marine Forces Reserve] 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 991118 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 states his discharge was partially caused by miscommunication and ignorance on his part.  The Board rejects his argument.  The applicant signed a letter on 940928 that stated his understanding of reserve drill requirements.  His record of unauthorized absences for drill periods and for annual training indicate a willful disregard for his responsibilities as a Marine.  Relief denied.

The applicant also states he was seeking a discharge based on his injured knee.  The NDRB has no authority to change the reason for discharge from or to a physical disability.   The Board does not consider the circumstances surrounding the applicant’s stated condition and treatment received to be of sufficient nature to warrant an upgrade to his characterization of service.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  The Board was impressed with the applicant’s efforts at continuing his education, but does not consider these accomplishments to be of sufficient nature to exculpate the applicant from his willful failure to participate in reserve drills that he knew he should be attending.  The applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95. 

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

C.  Table 6‑1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95, Guide for Characterization of Service.

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 “afls10.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