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

ex-PFC, USMCR
Docket No. MD05-00233

Applicant’s Request

The application for discharge review was received on 20041119.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions and the reason for the discharge be changed to “Sec’s Plenary Auth.”   The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118.  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 and reason 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:

“See pages 1 – 3 of Attached Brief.”

Issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):

“1.  Issue #1.  Propriety.  There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance and the rights of the applicant were prejudiced thereby.  Specifically, former Private First Class S_ G. K_ (Applicant) (hereinafter referred to as “Mr. K_ (Applicant)” or “applicant”) was not properly counseled in a manner that Marine Corps regulations required before recommending or approving a discharge based upon unsatisfactory participation in the Marine Corps Reserves.  SecNavInst 5420.  174C, enclosure (1), paragraph 9.2.a(1) at the Appendix to this Brief (hereinafter referred to as “App.”), at page 78.

2.  Issue #2.  Equity.  This discharge is not equitable because at the time of issuance, the discharge was inconsistent with standards of discipline in the military service of which the applicant was a member.  Specifically, under the specific circumstances of this case, when applicant was not given the opportunity to transfer to a unit closer to his home and was required to continue meeting at a unit that was difficult for him to attend, most units would not have placed applicant in this position and then discharged him for unsatisfactory participation when he was unable to attend.  SecNavInst 5420.174C, enclosure (1), paragraph 9.3b, App., pg. 79.

3.  Issue #3.  Equity.  This discharge is not equitable based upon consideration of the applicant’s service record and other evidence presented to the Navy Discharge Review Board  (NDRB) viewed in conjunction with the following factors:  applicant’s service history as evidenced by his service history, proficiency and conduct marks, length of service, outstanding post-service conduct, and the absence of courts-martial, nonjudicial punishments, or civilian convictions.  SecNavInst 5420.174C, enclosure (1), paragraph 9.3.c(1)(a)-(o), App., pgs. 79-80.  It should be noted regarding applicant’s post-service conduct that he is currently employed by Blackwater USA, and located in Iraq, providing security in support of this nation’s operations in that country.  Applicant is unable to provide specifics regarding his current employment, but the NDRB can obtain more information at the website www.BlackwaterUSA.com.

4.  Issue #4.  Equity.  This discharge is not equitable based upon consideration of the applicant’s service record and other evidence presented to the Navy Discharge Review Board (NDRB) viewed in conjunction with applicant’s capability to serve, to include the extenuation and mitigation of applicant’s family and personal problems that may have affected applicant’s ability to serve satisfactorily.  Specifically, applicant’s unemployment and financial problems made him an outcast among this military police unit composed mostly of civilian police officers.  SecNavInst 5420.174C, enclosure (1), paragraph 9.3.c(2)(b) at App., pgs. 80-81.

5.  Issue #5.  Equity.  A discharge upgrade is warranted based upon consideration of applicant’s service record and other evidence presented to the NDRB viewed in conjunction with applicant’s capability to serve, to include the arbitrary and capricious actions taken by those in applicant’s chain of command.  This includes actions by individuals in authority that constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.  Specifically, applicant’s command refused to recommend or consider applicant for a transfer to a unit closer to his home, those in the command treated applicant contrary to acceptable Marine Corps standards by publicly humiliating and verbally abusing applicant in a unit formation, and by Marine Corps personnel senior to applicant providing false information to both applicant and command personnel regarding applicant’s intentions for further military service.  SecNavInst 5420.174C, enclosure (1), paragraph 9.3.c(2)(c) at App., pgs 80-81.

6.  Issue #6.  Equity.  A discharge upgrade is warranted based upon consideration of the fact that other military services have given the vast majority of servicemembers a discharge under honorable conditions (general) or an honorable discharge when discharging their members for unsatisfactory participation in the reserves.  Statistics are provided for years 2001 and 2002 for the other three military services.  App., pgs. 133-138.  See a summary of those statistics at paragraph 7.c below.”

Documentation

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

Counsel’s case brief, dtd 13 November 2004 (9 pages)
Applicant’s Declaration, dtd 6 September 2002 (2 pages)
Character reference/Declaration, dtd 11 September 2002
Character reference, undated (3 pages)
Administrative Discharge Package (15 pages)
21 pages from Applicant’s record book
Explorer Scout Documents prior to entering Marine Corps (10 pages)
USMC Devil Pup Documents prior to entering Marine Corps (2 pages)
Certificate of Achievement, dtd 27 – 30 March 1995
Certificate of Completion, World pf Criminal Justice, dtd February 8, 1997
Certificate of Training, Law Enforcement Warrant Service, dtd June 19, 1998
Certificate of Completion, Initial firearms Training, dtd July 16, 1998
Certificate of Training, Law enforcement Pepper Spray/OC, dtd 11 August 1998
Certificate of Completion, Powers to Arrest, Tear Gas and Baton Course, 
   dtd February 05, 2000
Certificate of completion, P.C. 832 Module I & III (Powers of Arrest), 
   dtd Spring 2000
Certificate of Training, Firearms Laser Training Update, dtd April 10, 2000
Certificate of Training, Firearms Simulator Training, dtd April 28, 2000
Certificate of Completion, Use and Carrying of a Concealed Weapon, dtd 5/3/00
Certificate of Completion, Force Options Class, dtd March 30, 2001
Criminal Records Checks (3 pages)
Department of Motor Vehicles Report
Photocopies of Assorted Permits documenting Certifications (2 pages)
Marriage Certificate 
Family pictures
Character Reference, dtd March 24, 2004
Character Reference, dtd 04-08-04
Character Reference, dtd April 15, 2004
Character Reference, dtd 4/2004
Chapter 9, SECNAVIINST 5420.174C, Standards for Discharge Review (4 pages)
Extracts from MCO P1900.16E (4 pages)
Extracts from MCO P1001R.1J, MCRAMM, (7 pages)
Extracts from ForO P5800.6, Legal SOP (40 pages)
Army Special Inquiry response (FOIA), dtd November 8, 2002 (2 pages)
Air Force Special Inquiry response (FOIA), dtd 6 Oct 2002 (2 pages)
Navy Special Inquiry response (FOIA), dtd 15 Aug 2002 (2 pages)
BCNR Decision, Docket No. 3839-99, dtd 29 September 1999 (3 pages)
NDRB Decisional Document, Docket No. MD02-00145 (9 pages)
NDRB Decisional Document, Docket No. MD99-00795 (6 pages)
NDRB Decisional Document, Docket No. MD01-00900 (6 pages)

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:  940921		Date of Discharge:  990428

Length of Service (years, months, days):

	Active:    00  06  18
	Inactive:  04  00  20

Age at Entry:  19			Years Contracted:  8 

Education Level:  12			AFQT:  48

Highest Rank:  LCpl			MOS:  5811 (Military Policeman)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (9)			Conduct:  4.4 (9)

Military Decorations:  LtrComm

Unit/Campaign/Service Awards:  NDSM, RM, MUC

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:

941114:	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.

941114:	Applicant reported for initial tour of active duty for training.

950527:	Applicant released from initial tour of active duty for training with honorable by reason of completion of required active service (USMCR) IADT.

950824:	Applicant to ADSW.

950827:	Applicant released from ADSW.

960714:	Counseled for deficiencies in performance and conduct.  [Issuing a dishonored check (NSF) to MWR.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970607:	Counseled for deficiencies in performance and conduct.  [Not recommended for promotion to Cpl because of BST failure.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980917:	Letter of unsatisfactory participation in SMCR mailed to Applicant’s primary address for missing drills on 980911, 980912, and 980913.

981020:	Letter of unsatisfactory participation in SMCR mailed to Applicant’s primary address for missing drills on 981002, 981003, and 981004.

981025:	Counseled for deficiencies in performance and conduct.  [Not recommended for promotion to Cpl because of UA and weight control.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

981113:	Notification of intent to reduce due to unsatisfactory participation in SMCR sent via certified mail.

981114:	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)]

990113:	Letter of unsatisfactory participation in SMCR mailed to Applicant’s primary address for missing drills on 6, 7 Nov; 19, 20 Dec 98; and 9, 10 Jan 99.

990117:	Applicant reduced to PFC with a date of rank of 950501.

990212:	Letter of unsatisfactory participation in SMCR mailed to Applicant’s primary address for missing drills on 990206 & 990207.

990225:	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 the Applicant’s “failure to attend drills as follows:  25 missed drills during the preceding 12 month period on 6 and 7 February 1999; 9 and 10 January 1999; 19 and 20 December 1998; 6 and 7 November 1998; 2, 3, and 4 October 1998; and 11, 12, and 13 September 1998.”  Commanding officer’s comments (verbatim): “(Applicant) has not made any attempt to make up his unexcused absences nor has he contacted this command regarding his new address or any problems he might be having.  (The Applicant) has not displayed any potential for mobilization of further service …”

990323:	Letter of unsatisfactory participation in SMCR mailed to Applicant’s primary address for missing drills on 990306 & 990307.

990411:	Counseled for deficiencies in performance and conduct.  [UA from the following Drills 990409-990411.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990412:	Letter of unsatisfactory participation in SMCR mailed to Applicant’s primary address for missing drills on 9, 10, 11 Apr 99.

990413:	SJA review determined the case sufficient in law and fact.

990413:	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 19990428 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 Marine Corps policy regarding the disposition of reserve personnel who fail to participate in required drills, under circumstances similar to the Applicant’s case, remains substantially the same.  Today, as it was at the time of the Applicant’s separation from the Marine Corps, this usually results in an under other than honorable conditions discharge.  The facts remain, the applicant failed to respond to official correspondence sent to him from his command via certified mail; he “made (no) attempt to make up his unexcused absences nor (had) he contacted (his) command regarding his new address or any problems he might be having.”  By Marine Corps regulation, failure to acknowledge official correspondence constitutes acknowledgement and waiver of all rights.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  It would be inappropriate to upgrade the Applicant’s discharge to honorable based on this issue.  Relief denied.

Issues 2, 3 & 4:  The Applicant contends his ability to satisfactorily comply with his enlistment agreement was directly affected by his personal and financial problems as well as his family situation at the time.  The NDRB recognizes that serving in the United States Marine Corps is challenging.  While the Marine Corps makes every effort to accommodate individual desires in duty assignments, the needs of the service take precedence.  It is generally accepted, that service needs and assignment policy are oriented toward the service member’s military occupational specialty.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country.  It must be noted most members of the Corps serve honorably; thereby, earning honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  An upgrade to honorable or general (under honorable conditions) would be inappropriate.  Relief denied.
  
Issue 5:  The Applicant signed a contract on 940921, while enlisting into the USMCR acknowledging his understanding of the requirement to serve in the Marine Corps Reserve for an initial military service obligation of eight (8) years.  This obligation requires participation in 48 scheduled drills (usually one weekend per month) and not less than 14 days (exclusive of travel time) of active duty training per year for 6 years upon completion of initial active duty training.  The Applicant was administratively separated with an under other than honorable conditions discharge for failure to participate in reserve training, specifically missing scheduled drills totaling 25 unexcused absences.  The letter notifying him of the command’s intention to separate him for unsatisfactory participation was sent via certified mail, with a return receipt requested.   The Applicant signed the return receipt accepting the letter but failed to respond.  While the Marine Corps makes every effort to support a Marines personnel considerations and needs, the mission and Marine Corps needs are always considered first when making assignments.  Command support for the Applicant’s transfer request appears to be unlikely considering the fact he requested a transfer to a unit outside of his military occupational specialty and he was within acceptable commuting distance of his assigned unit.  Additionally, the record does not support the Applicant’s contention that he was humiliated publicly or verbally abused in a unit formation. Finally, the record clearly shows by the Applicant’s failure to respond to official correspondence he did not desire to continue in the Marine Crops Reserve.  The Applicant’s discharge characterization accurately reflects his service to our country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Again, the record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied. 

Issue 6:  Since each service handles their administrative discharge process according to service culture and the unique demands necessitated by service within that branch of the Armed Forces, the Applicant’s discharge is entirely within the norm for the Marine Corps.  The statistics presented by the Applicant’s attorney, while supportive of the idea of other military services’ leniency, do not mitigate the Applicant’s willful failure to participate in reserve drills he knew he should be attending.  Relief denied. 

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that the Applicant’s failure to attend drills and unmistakably was the reason he was discharged.  No other Narrative Reason for Separation could more clearly describe why the he was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

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 verifiable 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