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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMCR
Docket No. MD05-01034

Applicant’s Request

The application for discharge review was received on 20050602.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20051013.  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 the application to the Board:

“In 1992 I entered the U.S. Marine Corps Reserve with the full intention of fulfilling my obligations.  My primary employment became the O_ P_ Sheriff’s Department, where I still serve to this day.  During the course of my employment, I regularly found it difficult to secure time off for my military obligations.  My superiors regularly informed me that it was my responsibility to arrange for someone to fill my position in my absence.  Due to our manpower shortage, this was extremely difficult, and often impossible.  At that time, I was unaware that the law required the Sheriff’s Department to allow me time off for my military service.  The situation was highlighted when I was unable to fulfill my two weeks of service, because of work at the Sheriff’s Dept.  I never notified my commander (U.S.M.C.) of the problems I was having because I believed it would cause a confrontation with my primary employer and I would be subsequently terminated.  The abuse by my employer seriously impaired my ability to serve, and at the time I received no counsel which led me to believe the law was on my side, in reference to the department allowing me time for military service.  My service record was unblemished, except for the times when I was unable to attend because of my law enforcement career.  I recently decided on furthering my career, but have found it extremely difficult to change departments, due to a discharge of “other than honorable,” from the Marine Corp.  I understand I do not deserve an “Honorable Discharge”, because I should have requested legal counsel for the problem.  I, however, request you have mercy on me due to my ignorance of law and the hardship I had in trying to balance two public service obligations.  I am not seeking any benefits to be reinstated, but only allowed to continue my public service in another law enforcement department.  I request my service record be reviewed, and the above statement to be considered in a consideration to change my discharge to “General, under honorable conditions” or “General, due to hardship”.  Thank you for your time and consideration.”

Documentation

Only the service record book and medical record were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

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:  19920427		Date of Discharge:  19941031

Length of Service (years, months, days):

Active:    00  05  08  
	Inactive:  02  00  26

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  8

Education Level:  12				AFQT:  81

Highest Rank:  LCpl				MOS:  0341

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (4)				Conduct:  4.3 (4)

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

920427:	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.

920518:	Applicant reported for initial tour of active duty for training.

920815:	Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

921011:	Counseling:  Advised of deficiencies in performance and conduct (unsatisfactory participation in the Ready Reserve).  Necessary corrective actions explained (coordinate with Inspector-Instructor Staff to schedule make-up drills).  Sources of assistance provided, disciplinary and discharge warning issued.  [Applicant not available for signature.]

930609:	Applicant reported to active duty for temporary instructions.

930818:	Applicant released from IADT with an Honorable by reason of completion of required active service (USMCR) IADT.

940131:	Applicant reported for annual active duty training.

940205:	Applicant released from annual active duty training.

940719:	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 in the Selected Marine Corps Reserve.  The factual basis: 19 unexcused absences as of the 8th of May 1994 and absent from Annual Training from 23 June to 9 July 1994.  

Undated:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940922:	Commanding Officer/Inspector-Instructor, Weapons Company 1st Battalion, 23d Marines, Bossier City, LA, recommended to the Commanding General, Marine Reserve Force (SJA) that the Applicant be discharged under other than honorable conditions by reason of unsatisfactory participation in the Selected Marine Corps Reserve due to 15 unexcused absences as of the 8th of May 1994.  Commanding Officer’s comments:  “The following summary of facts and circumstances that form the basis for recommending LCpl F_ (Applicant) for separation:
	a.  LCpl F_ (Applicant) was mailed a drill notice on a monthly basis and the unit continued to make monthly calls tin an effort to return him to active participation.  As evident by enclosure (2), on 28 July 1994 the Commanding Officer’s Letter of Intent was mailed via certified mail.  Due to LCpl F_ (Applicant)’s absence we have not been able to conduct face to face counseling per paragraph 6105 of reference (a) with him for the most recent absences due to his unavailability.
	b.  Personal visits to speak with and counsel LCpl F_ (Applicant) were not attempted because the respondent lives outside a 50 mile radius from the unit.  LCpl F_ (Applicant) stated via telephone conversations with this unit that he understood the ramifications, and he did not want to be a member of the Selected Marine Corps Reserve any longer.
	c.  LCpl F_ (Applicant) shows absolutely no potential for further military service or mobilization potential as a member of the Selected Marine Corps Reserve.  LCpl F_ (Applicant) has not been given a Secret clearance for classified material.  Consideration for involuntary assignment to active duty has been made in this case, but we do not feel it is with the best interests of the Marine Corps.  This individual’s poor attitude, irresponsible behavior, and total lack of commitment to military service make him unsuitable for retention in any form.”

941019:	GCMCA, Commanding General, Marine Reserve Force, New Orleans, LA, advised the Commandant of the Marine Corps (MMSG-20) that Applicant's discharge was directed under other than honorable conditions by reason of failure to participate (Reserve not on active duty) admin discharge board required but waived.  [Note: Reference made in CG’s letter to SJA determination that the case sufficient in law and fact.]

941031:	CO, Weapons Company, 1st Battalion, 23d Marines advised Applicant of his discharge effective 2359 on 31 October 1994 Under Other Than Honorable Conditions.  Applicant not recommended for reenlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941031 by reason of unsatisfactory participation in the Ready Reserve (A, B, and C) with a service characterization of 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 desires a service characterization upgrade to General (Under Honorable Conditions) in order to pursue his law enforcement career.  The NDRB recognizes the challenges of juggling a law enforcement career and the commitments of Marine Corps Reserve duty.  However, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue does not serve to provide a foundation upon which the Board can grant relief.  Relief on this basis is not warranted.

The Board interpreted the Applicant’s request to change his discharge to “General, due to hardship” as a request to change the Narrative Reason for Separation.  Under its responsibility to examine the propriety and equity of a discharge, the NDRB will change the reason for discharge if such a change is warranted.  The Applicant’s service record clearly documents that failure to participate in the Marine Corps Reserve was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  Relief on this basis is denied.

The following is provided for the Applicant’s edification.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity.  While 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 Marine Corps, the Board is authorized to consider 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, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant did not provided any post-service documentation for consideration.  Relief on this basis is not warranted.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 P1900.16D, 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, Para 211, Regularity of Government Affairs.  

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