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

ex-Pvt, USMCR
Docket No. MD01-00548

Applicant’s Request

The application for discharge review, received 010320, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010906.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because I did not understand the conditions of my release.  I was having a hard time scheduling my civilian job with drill weekends and was reduced in rank by mail.  From then, I was asked if I wanted to be released from reserve duty.  I agreed but did not understand what the conditions would be.  I served honorably through the time I served with a meritorious promotion and a meritorious mast, among awards and medals for service in the Involuntary Presidential call-up during Operation Desert Storm.  I am very proud of my service and didn't thank I would be released by an other condition than Honorable.  I believe if I would have had some kind of counseling I would have choose differently.  I would like to request an upgrade to honorable so I can be truly proud of my service and my children can too.  I honestly did not think nor understand my decision for discharge clearly at that time.  I now look back on the time and regret the decision and would like to feel better about the time I served with an honorable discharge.

Documentation

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

Copy of DD Form 214 for period 901130 to 910429
Copy of DD Form 214 for period 890123 to 890713
Reserve Retirement Credit Rep (NAVMC 798)
Meritorious Mast Certificate dtd 22 July 1990
Meritoriously Advancement Certificate to PFC dtd 2 April 1989
10 pages from Military Service Record

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:  881206		Date of Discharge:  921218

Length of Service (years, months, days):

	Active:  00  10  21
	Inactive:  03  02  22

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  81

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (10)		Conduct:  4.1 (10)

Military Decorations:  None

Unit/Campaign/Service Awards:  MM, NDSM, SWASM, SSDR

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:

881205:	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.

890123:	Reported for Initial Active Duty for Training (IADT).

890713:	Released from IADT, having served 5 months, 21 days of active duty, received Honorable characterization of service.

901130:	Reported for involuntary recall to active duty.

910429:	Released from active duty, having served 5 months of active duty, received Honorable characterization of service.

920106:	Letter of notification to applicant:  Administratively reduced to PFC due to unsatisfactory performance of reserve training due to unexcused absence from scheduled drills on 7/8 Dec 91.

920202:	Counseled for deficiencies in performance and conduct [unauthorized absence from scheduled drills(s) for the period of 7 and 8 Dec 91].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920510:	Acknowledged eligibility for but not recommended for promotion to LCpl for Feb 92 because of lack of leadership and non make up of unexcused drills.  

920510:	Acknowledged eligibility for but not recommended for promotion to LCpl for Mar 92 because of lack of leadership and non make up of unexcused drills.

920510:	Acknowledged eligibility for but not recommended for promotion to LCpl for Apr 92 because of lack of leadership and non make up of unexcused drills.

920510:	Acknowledged eligibility for but not recommended for promotion to LCpl for May 92 because of lack of leadership and non make up of unexcused drills.

920913:	Counseled for deficiencies in performance and conduct [unauthorized absence from scheduled drills(s) for the period of 28 through 30 August 1992 (5 drills)].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant was not available for signature for the counseling entry undated due to his unexcused absence from scheduled drills.  Copy of the counseling entry was mailed to PFC (Applicant) for his acknowledgement.

920916:	Letter of notification to applicant:  Administratively reduced to Pvt due to unsatisfactory performance of reserve training due to unexcused absence from scheduled drills 28 through 30 Aug 92.

920921:	Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training, specifically scheduled drills for the months of December 1991, and June, August and September 1992, totaling 16 unexcused absences to date.  Letter 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).

921002:	Counseled for deficiencies in performance and conduct [unauthorized absence from scheduled drills(s) for the period of 11 through 13 September 1992 (5 drills)].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant was not available for signature for the counseling entry undated due to his unexcused absence from scheduled drills.  Copy of the counseling entry was mailed to PFC (Applicant) for his acknowledgement.

921103:	Sgt D_ R_ personally delivered a copy of the Notification of Separation Proceedings dated 21 September 1992, which Pvt (Applicant) had already receipted for the original, by certified mail.  Pvt (Applicant) had yet to return the personal receipt letter to this command, Sgt R_ had Pvt (Applicant) sign the Personal Receipt of Notification of Separation Proceedings.

921106:	Counseled for deficiencies in performance and conduct [unauthorized absence from scheduled drills(s) for the period of 2 through 4 October 1992 (5 drills)].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant was not available for signature for the counseling entry undated due to his unexcused absence from scheduled drills.  Copy of the counseling entry was mailed to PFC (Applicant) for his acknowledgement.

921211:	SJA review determined the case sufficient in law and fact.  

921211:	GCMCA [CG, MRF, New Orleans] 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 921218 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).

Issue 1.  The applicant stated his discharge was inequitable because he did not understand the conditions of his release.  However, the applicant receipted for a letter of intent dated 920921, to administratively separate under other than honorable conditions for the failure to participate in reserve training, specifically scheduled drills for the months of December 1991, and June, August and September 1992, totaling 16 unexcused absences.  The letter was sent via certified mail, with 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).  He also signed a contract on 881205, while enlisting into the USMCR, that acknowledged 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 Board rejects the applicant’s claim that he needed some kind of counseling to remind him of these obligations.  Relief denied.

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.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  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 P1900.16D, effective 890627 until 950817) states that a Marine may be separated for unsatisfactory participation in the Ready Reserve under criteria established in MCO P10014.1.

B.  Marine Corps Reserve Administrative Management Manual, MCO P10014.1.

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 “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