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

FOR OFFICIAL USE ONLY

 ex-Pvt USMCR
Docket No. MD05-00880

Applicant’s Request

The application for discharge review was received on 20050419.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests 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 20050811.  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 by reason of unsatisfactory participation in the Ready Reserve.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on an attached letter to the Board:

“To Whom It May Concern:

Subject:  Honorable Discharge

I began my career in the United States Marines March 3, 1993.  I originally signed in for 3 years as a reservist.  My unit was located in Montgomery, Alabama where my MOS was 0311 Infantry.  I entered the military after completing my second year in college at Columbus State University.  My recruiter promised I would finish as an E-2 after basic training.  Yet, that promise was not maintained by him considering he never submitted my college hours to Paris Island, SC.  I completed 3 months of Infantry training after basics in September 2003.  I was promoted to an E-2 a month before finishing this training; therefore I should have finished as an E-3 Lance Corporal.  I feel that my records have been handled incorrectly.

I honorably attended my weekend duties after being given orders to my reserve unit and continued to obtain my degree in Communications.  My unit was not able to acquire any military identification cards considering the unit had been previously burned down.

I tore my Anterior Cruciate Ligament (ACL) while away from my unit in 1994 and was unable to attend weekend training with my reserve unit.  I was seeing doctors in Columbia, Ga., and military doctors at Fort Benning Ga.  The injury took a full year to recover and prohibited me from attending my monthly obligation to the USMC.

The USMC doctors would not take the statements from the US Army doctors that I was injured to the degree of an ACL.  Thus, I was given the rank of an E-1 and dismissed with an Other Than Honorable Discharge.  I think this was unethical and not right.

I did not miss my sessions intentionally, but it was because I couldn’t due to my injury.  I do not understand why a USMC doctor would not accept word from a US Army doctor.  I did not get shown any leniency nor an justice with my situation.  Nevertheless, I was distressed.

Therefore, I am humbly asking for an Honorable Discharge, benefits that will enable me to get a VA Loan for a future house and G.I. Benefits for my education.  I feel I should have been discharged with a rank of an E-2 and an Honorable Discharge.  I have included medical documents in support of my argument.  Please consider my proposal.

Thank you,

[signed] J_ J_ [Applicant]”

Documentation

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

Memorandum from Major K_ P. M_ MC USA, dtd January 3, 1995
3 pages from Applicant’s service record book
Ltr from The Hughston Clinic, dtd August 1, 1994 (2)
Medical record document from Dr. M_ B. H_, MD, dtd June 28, 1994
6 pages from Applicant’s medical record by Martin Army Community Hospital
Ltr from Whatley-Goldsmith Orthopaedic Clinic, undated
Report of MRI, dtd July 7, 1994

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19921118		Date of Discharge:  19941213

Length of Service (years, months, days):

Active:    00  06  06  
	Inactive:  01  06  20

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  8

Education Level:  12			AFQT:  66

Highest Rank:  PFC			MOS:  0311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.5  (3)		Conduct:  3.5 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): National Defense Service Medal, Marksman Rifle Badge

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:

930302:	Waiver for drug abuse and morals granted.

930302:	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 3 years upon completion of initial active duty training.
 
930609:	To duty for instruction.

930908:	Released from active duty to reserve.

9403XX:	Documents provided by Applicant indicate the Applicant injured his knee this month.

940315:	Letter sent to Applicant informing him he is being recommended for administrative reduction.

940408:	Applicant reduced to private effective 930303.

940410:	Applicant declared unsatisfactory participant.  Applicant advised of CO/I-I intent to recommend to the CG, MARRESFOR, a discharge under other than honorable conditions by reason of unsatisfactory participation due to excessive missed drills.  Due to nonavailability SNM notified by certified mail.

940411:	Applicant did not respond to 940315 letter regarding administrative reduction by this date.  

940427:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of unsatisfactory participation.  The factual basis for this recommendation was missed drills on 7, 8, 9 Jan 94, 11, 12, 13 Mar 94 and 9, 10 Apr 94.  

940428:	Applicant’s notification dated 940427 was mailed by certified mail this date.

940813:	Commanding Officer/Inspector Instructor, Company “L,” 3rd Battalion, 23d Marines, (VIA Commanding Officer, 3d Battalion 23d Marines), recommended to Commanding General Marine Reserve Force, Applicant’s under other than honorable conditions discharge by reason of unsatisfactory participation.  Commanding Officer’s comments:  “Pvt J_ (Applicant) is in an unsatisfactory participation status in the Ready Reserve.  Many attempts have been made in person, by telephone and finally, by certified mail (see enclosure (2) [affidavit of service by mail], and (3) [certified mail receipt card], to encourage him to return to a satisfactory status and to warn him of the consequences should he fail to do so.  Pvt J_ has made no effort to attend drill or return to a satisfactory drill status.  Pvt J_ has been given ample opportunity to remedy his deficiencies.  He possess no sense of responsibility toward his obligation to the Marine Corps.  He has steadfastly refused to attend drills.”

941021:	SJA review determined the case sufficient in law and fact.

941103:	GCMCA, Commanding General, Marine Reserve Force, directed the Applicant's under other than honorable conditions discharge by reason of failure to participate.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941213 by reason of unsatisfactory participation in the Ready Reserve (A, B, and C) with a service characterization under other than honorable conditions.  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 (D and E).  The Board presumed regularity in the conduct of governmental affairs (F).

The Applicant’s service was marred by his complete failure to honor his contract with the Marine Corps.  The service record reflects that the Applicant’s first series of  missed drills occurred in January 1994 when he missed required drills on 7, 8 and 9 January.  The Applicant did not injure his knee until March 1994.  The record shows the Applicant missed a total of 14 scheduled drills in a three-month period. Despite the Applicant’s claims, the record indicates the Applicant made no attempts to rectify his absences with his command.  He was notified of a pending reduction, by mail, on 19940315.  By 19940411, the Applicant had not responded to his command with respect to the pending reduction.  On 19940428, the Applicant was notified by certified mail of his Commander’s intention to separate the Applicant due to his unsatisfactory participation.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contents that he did not miss his drills intentionally and that his misconduct was the result of his injury and subsequent recovery.  While he may feel that his medical condition was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Regarding the Applicant’s claims with respect to promotions and benefits, these issues are beyond the purview of this Board.  Regulations limit the Board’s review to a determination on the propriety and equity of a former service member’s discharge.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  

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.  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 P1900.16D, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

F.  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.

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