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

ex-PVT, USMCR
Docket No. MD03-00153

Applicant’s Request

The application for discharge review, received 20021029, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  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 20031003.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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

Applicant’s issues, as stated on the application:

1.  “While I was serving my Reserve obligation I was put on TNPQ, Temporarily Not Physically Qualified, status because of a shoulder injury I received in the summer of 1995.  I was on TNPQ until September 1996, not having drilled for 15 consecutive months.  On January 15, 1996 I had should surgery to repair the original injury.  To my knowledge the records of my injury, TNPQ time and surgery were lost and are no longer in my Service Book.  Shortly after my surgery I had a discharge physical at Bethesda Naval Hospital in anticipation of receiving a medical discharge from the Reserves, at that time I was marked as unfit for duty.  In September of 1996 I was called back to drilling status.  I was told later on by the corpsman of my reserve until that I should not have been allowed on TNPQ for that long a period of time and should have been discharged in 1996 because of the injury.  I drilled from September of 1996 to February of 1998 when I hurt my left shoulder again and was put back on TNPQ.  I have included a letter from my surgeon stating that I had injured my shoulder again and was commencing with physical therapy.  This letter was sent to my reserve unit as well.  The second letter I have included, dated October 7, 1998, is from my same surgeon sating that my shoulder has not progressed sufficiently and that I will have to have surgery again to fix the program.”

     “Because I needed a second operation to fix my shoulder, and until my shoulder was fixed I would stay on TNPQ, I thought that was all the information that the Marine Corps needed from me.  Evidently I was put as UNSAT for failing to appear for monthly drills even though I should have been listed as medical exception.  I received a call from my platoon sergeant in 2000 asking me where I had been for the last two years.  I explained to him that I was on TNPQ because of my outstanding shoulder injury and was expecting a medical discharge.  He told me that He had no record of my second injury or my first injury and subsequent operation.  Even though I was out for 15 months and came back the Marine Corps had lost any record of my initial operation, though I was not disciplined for that absence when I resumed drilling in September of 1996.  Being that there was no record of my injury I was labeled as UNSAT and was given an “Under other than honorable” administrative discharge from the reserves.  I feel this is unjust because I supplied the Marines with all of the information I had demonstrating the severity of my injury when I was supposed to and feel that I should be discharged under either Honorable or General circumstances.” 

Documentation

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

Dr. G_ J. L_, M.D. ltr dtd Apr 1, 1998
Dr. G_ J. L_, M.D. ltr dtd Oct 7, 1998

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:  930407		Date of Discharge:  010116

Length of Service (years, months, days):

	Active:    00  06  07
	Inactive:  07  09  10

Age at Entry:  19			Years Contracted:  8 

Education Level:  12			AFQT:  99

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.32 (11)		Conduct:  4.33 (11)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Marksman Rifle Badge

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:

930407:	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.

930706:	Reported to initial active training for training  (IADT).

940112:	Released from IADT, transfer the Marine Corps Reserve, having served 
6 months 7 days active duty, and received characterization of service as honorable.

960224:	Notation on Physical exam:  Had orthoscopic surgery of left shoulder 15 Jan 96 at Anne Arundel Medical center because left shoulder subluxation.  NPQ since July 95.  Has recently began rehab therapy.  Left shoulder       have limited motion & unable to lift weight without significant pain.

970811:	NATNAVMEDCEN Bethesda, MD:  Symptom – 23 year old male present with compliant of poison ivy for 2 days, covers legs, chest, both arms, itching redness.  No history of tick exposure.  Plan:  Celestone cream.

000312:	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.  Unknown person at Applicant’s listed address receipted for letter by return signature but Applicant did fail to acknowledge the contents.  [The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303)]

001002:	Commanding officer recommended discharge under other than honorable conditions by reason of unsatisfactory participation in the Ready Reserve due to excessive unexcused absences on the following occasions:  000220 (2), 000219 (2), 000218 (1), 000109 (2), 000108 (2), and 000107 (1) and failed to attend scheduled annual training 20000708 – 20000722.  Commanding officer’s comments (verbatim):  “Private K_ (Applicant) has been in this unit since 990904 and at the drills he has attended, he has performed to the minimal standards of the Selected Marine Corps Reserve.  His chain of command hasn’t been able to reach him, and he has made no attempt to contact the unit himself.”  [SECOND PAGE OF CO’S LTR IS NOT CONTAINED IN SERVICE RECORD.]

010116:	SJA review determined the case sufficient in law and fact. 

010116:	GCMCA [Commander, Marine Forces Reserve, New Orleans, LA] directed the Applicant's discharge under conditions other than honorable by reason of failure to participate in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010116 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).  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable (E and F). 

Issue 1 - The Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, (B), paragraph 300, states, in part, that a Reservist may be termed an unsatisfactory participant for:

1.  Unsatisfactory IDT attendance or participation to include unexcused tardiness or absence, failure to meet minimum standards of performance, unsatisfactory personal or military appearance, or failure to resume drilling obligation when terminated from TNPQ/NPQ status for non-compliance.

2.  Failure to keep the CO/OIC/CG, MCRSC informed of current mailing address and telephone number.

Additionally, the regulation (B), paragraph 105, states, in part, that Reservists temporarily not physically qualified (TNPQ), are responsible for notifying the Medical Representative (MDR) or Commanding Officer/Inspector-Instructor within 5 days after the injury/illness has occurred.  Documentation from the Marine's attending physician must be provided to the unit.  To ensure that the unit and the MDR are kept informed of the Marine's status, the member is required to provide medical documentation every 30 days from the member's attending physician or other medical clinic providing service.  Reservist’s who fail to comply with this requirement may be terminated from the TNPQ status after appropriate notification for noncompliance and directed to resume their drilling obligation.  Failure to comply could result in involuntary administrative separation and/or (for enlisted personnel) administrative reduction in rank.  A TNPQ status shall not extend beyond six months without prior approval of COMMARFORRES (G-4 Med).  There is no evidence in the service record that the Applicant advised the command and provided the required medical documentation to be excused from drill status due to his medical condition.  A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Marine.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

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 “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