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

ex-PFC, USMCR
Docket No. MD05-00210

Applicant’s Request

The application for discharge review was received on 20041020.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant listed The American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214.  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

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Issue:  My record of attendance for drills was excellent until my step father became terminally ill.  Requiring me to be home.”

2.  “Issue:  My mother relyed on me to help with family matters during my step fathers terminal illness.  Going to college left weekends to do this.”

3.  “Issue:  Although I informed my unit of my family situation they ignored my request for help.  Even after my state representative wrote my unit I was not permitted to make up drills.”

4.  “Issue:  I enlisted in the Marine Corps to serve my country in what I felt was the best and most caring brand of military.  I am very disappointed in my treatment by the Marine Corps during my family crisis”

5.  “Issue:  My reserve scheduled me for my 2 week summer annual training the same time I was to take my senior years college finals and graduate.  I requested a change of data but was refused.  This is not what I expected out of the USMC Reserve Unit.  That is supposed to take care of it’s Marines.”

6.  “I enlisted in the USMC Reserves, maily for three reasons:  First, to serve my country in the branch of military I considered the best.  Secondly, to assist me in getting a college education; and third, I believe military service teaches responsibility and maturity to help in future life.  During my training at Fort McClennan for my MOS school (military police) I received word from home that my step-father, with whom I reside was diagnosed with cancer while I was at boot camp, had now found to be terminal.  This greatly affected my total being as I had a good relationship with my step-father.  It also created severe hardships at home requiring my constant presence.  Due to this family emergency, I was unable to fulfill my commitment to attend many weekend drills in my Marine Corp Reserve unit.  Because of this illness to my stepfather, and my need to be home, I asked my State Representative to write a letter on my behalf, requesting a hardship discharge.  I felt that with stepfather’s illness being terminal, I needed to spend all the time I could with him before he was gone.  I called my unit to let them know I would be unable to attend drill and my reasons.  The next thing I knew, I received a letter saying that I was going to be discharged from the Marine Corp Reserve.  When I received the discharge, the Character of Service was marked under “other than honorable conditions”.  I feel this is very unfair.  I served honorably through basic training and Military Police School until such time that it became apparent that my stepfather was dying.  I felt the honorable thing for a Marine to do when a family member is dying was to be with them.  This is why I asked for a hardship discharge and felt I should be given one.  The Marine Corp must not have felt it was important to be with my stepfather in his time of need.  The “Other than honorable discharge” that I received was totally unfair, I ask that my discharge be upgraded to an "under honorable condition".  I submit the following supporting statements as evidence.  I thank you for your consideration in this important matter.

L_ P. S_ II (Applicant)”

Additional issues submitted by Applicant’s representative (American Legion):

7.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition. 

Our review of the service record reveals that this former member maintained satisfactory PRO/CON markings of 2.8/2.7 and earned the AFRM, SMCR as well as an HD from his active duty for training.  He missed a total of 36 unexcused drills.  Following due process notifications, he was discharged on 970522 Under Other Than Honorable Conditions due unsatisfactory participation in the ready reserve as authorized by MARCORSEPMAN, paragraph 6213.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because family problems resulting from the illness and eventual death of his stepfather contributed to and mitigated his misconduct of record.  He has submitted 6 pages of additional documentation in support of his contentions and attesting to his good character for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553, and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s composite DD Form 214 (member 1 & 4) voluntary release (USMCR) 
   IADT
Character reference from Applicant’s mother, dated February 16, 2004 
   (2 pages-2 copies)
Character reference, dated February 12, 2004 (2 copies)
Letter from House of Representatives, dated August 29, 2000 (2 copies)
Letter from House of Representatives, dated February 27, 2004 (2 copies)
Letter from Applicant, undated (2 copies)
Administrative Separation letter, dated 10 Oct (2 copies)
Annual Retirement Credit Record, dated July 31, 1999

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:  970610		Date of Discharge:  001218

Length of Service (years, months, days):

Active:    00  04  28		
Inactive:  03  01  11

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  63 

Highest Rank:  LCpl			MOS:  5811 (Military Policeman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  2.8 (3)			Conduct:  2.7 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFRM, SMCR

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:

970610:	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.

980526:	Applicant reported for initial tour of active duty for training.

980822:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

990531:	Applicant reported for tour of active duty for training.

990731:	Applicant released from tour of active duty for training with an uncharacterized by reason of voluntary release (USMCR) IADT.

000123:	Commanding officer notified the Applicant of unsatisfactory drill participation.

000220:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 990930, 991001-991003, 991106-991107, 991211-991212, 000122-000123, and 000218-000220.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000306:	Commanding officer notified the Applicant of unsatisfactory drill participation and intent for administrative reduction to PFC for unsatisfactory participation via certified letter.

000306:	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)]

000306:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000312:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 000311-000312.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000409:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 000407-000409.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000428:	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 unexcused absences on the following drill dates: 990930, 991001-991003, 991106-991107, 991211-991112, 000122-000123 and 000218-000220.

000513:	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)]

000521:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 000519-000521.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000617:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 000617]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000813:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 000811-000813.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

000910:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 000909-000910.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

001008:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 001006-001008.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

001010:	SJA review determined the case sufficient in law and fact.

001010:	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.

001115:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on 001111-001112.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

001220:	Counseled for deficiencies in performance and conduct.  [Unexcused absence from inactive duty training (IDT) on and 001202-001203.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant not available for signature.

010104:	Commanding officer informs the Applicant he is discharged from the Marine Crops Reserve as of 18 Dec 2000 with an under other than honorable conditions discharge by reason of misconduct due to unsatisfactory participation in the Ready Reserve.  Additionally, the Applicant is directed to return all uniforms and 782 gear in his possession.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001218 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).

Issues 1 - 6:  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.  While the Applicant may feel his family situation, his stepfather’s illness and his college schedule were contributing factors to his failure to live up to his contractual obligations to the Marine Corps Reserve, they do not mitigate his disobedience of the orders and directives regulating good order and discipline in the naval service, demonstrating he was unsuitable for further service.  On 000513, the Applicant receipted for a letter, dated 6 Mar 00, notifying him of discharge proceedings to administratively separate him under other than honorable conditions for the failure to participate in reserve training, specifically scheduled drills for 30 September 1999; 1, 2, & 3 October 1999; 6 & 7 November 1999; 11 & 12 December 1999; 22 & 23 January 2000; and 18, 19 & 20 February 2000, eventually accumulating 33 unexcused absences.  The letter was sent via certified mail, with a return receipt requested.  The Applicant receipted for the letter by return signature but failed to acknowledge the contents.  This failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).  The Applicant signed a contract on 970610, 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.  In light of the record, an upgrade to honorable conditions would be inappropriate.  Relief denied.

Issue 7:  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 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty.  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 1995 until 31 Aug 2001. 

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

F.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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