ex-CPL, USMCR
MD06-01127

Current Discharge and Applicant’s Request:

Application Received:  				20060825     
Characterization of Service:			UNDER 
Narrative Reason for Separation:			
Discharge Authority:				MARCORSEPMAN PAR 6213
Last Duty Assignment/Command at Discharge:	H&SCo 4th lsb fort lewis, wa 

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070719
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	INEQUITABLE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS) 	
By a vote of 5-0 the Narrative Reason remain UNSATISFACTORY PARTICIPATION IN THE READY RESERVE  

Applicant’s Issues, as summarized by the Board:
1.  Propriety of discharge; did not waive administrative board proceedings.  
2.  Misled by command during administrative processing.  
3.  Post service.  

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19900831-19901118 
Active:   		              			19901119-19910307 HON		

Period of Service Under Review:
Date of Enlistment:  				19940210
Years Contracted:  				;   Extension:   
Date of Discharge:				20000927
Length of Service
	Active:					Yrs      Mths      Dys  (Does not exclude lost time)
	Inactive:					06  Yrs  07  Mths  17  Dys  

Time Lost During This Period:			
Days UA:  					None
	
Education Level:  				
Age at this Enlistment:  				
AFQT:  						71
MOS:						2811
Highest Rank:					

Proficiency/Conduct marks (# of occasions):		NONE FOUND IN RECORD 

Fitness reports available for review?			961001 - 970731 
							980801 - 980815
Awards and Decorations: 	NONE FOUND IN RECORD

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19990412:	Commanding Officer, Inspector-Instructor, H&S Company informed applicant of his unsatisfactory participation in the Selected Marine Corps Reserve due to 5 unexcused absences from 9 thru 11 April 1999.

19990606:	Counseling:  Advised of deficiencies in performance and conduct.  Deficiencies in mandatory drill attendance at H&S Co, 4TH Landing Spt Bn, Ft. Lewis, WA.  Specifically being absent from regular scheduled drill on 9 through 11 April 1999.  Necessary corrective actions explained, sources of assistance provided.

19990623:	Commanding Officer, Inspector-Instructor, H&S Company informed applicant of his unsatisfactory participation in the Selected Marine Corps Reserve due to 5 unexcused absences from 4 thru 6 June 1999.

19990722:	Certified Notification of Discharge Processing and Intent for Administrative Reduction for Unsatisfactory Participation of Reserve Training in the Selected Marine Corps Reserve.
 
19990809:	Commanding Officer, Inspector-Instructor, H&S Company informed applicant of his unsatisfactory participation in the Selected Marine Corps Reserve due to 5 unexcused absences from 6 thru 8 August 1999.

19990915:	UA letter mailed for drill missed on 10 through 12 September 1999.

19991012:	UA letter mailed for drill missed on 1 through 3 October 1999

19991208:	UA letter mailed for drill missed on 4 and 5 December 1999.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19990722
Basis for Discharge:				

Least Favorable Characterization:			
Commanding Officer’s Intended Recommendation:	
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel				RETURNED UNSIGNED
Obtain Copies	  				RETURNED UNSIGNED
Submit Statement(s) (date)				RETURNED UNSIGNED
Administrative Board				RETURNED UNSIGNED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20000204)
SJA review (date):				
Separation Authority (date):			COMMANDER, MARINE FORCES RESERVE (20000724)
Narrative Reason directed:				FAILURE TO PARTICIPATE (RESERVE NOT ON ACTIVE DUTY)
Characterization directed:				
Date Applicant Discharged:			20000927

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				11     
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				
	Education:					1     
	Employment:					50     
	Health/Medical:					     
	Character Statements:				4     
	Criminal Records Checks:				     
	Additional Statements from Applicant:		2     
        Other Documentation (Describe Below)			     

        Total Number of Pages:				68     

	

Applicant’s Issues, as summarized by the Board:
1.  Mislead by command; did not waive administrative board proceedings.  
2.  Record of service.  
3.  Post service.  

Decisional Issues:
The Board accepted Issues 1-3 for consideration.   

Issue 1 (Propriety).  The Applicant implies that he did not waive his administrative board proceedings although he received the intent for administrative separation paperwork.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully and improperly discharged.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

Issue 2 (Equity).  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A discharge less than honorable is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by at least two counseling letters of unsatisfactory participation in the reserves and a Certified Notification of Discharge Processing and Intent for Administrative Reduction.  The NDRB considers that performance and those entries as significant negative aspects of service.  Upgrade to honorable would be inappropriate.  Relief denied. 

Issue 3 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided verifiable employment references and training certifications, transcripts from undergraduate school, and character references.  The Board noted that the Applicant has demonstrated a strong commitment to community and excellence.  His post-service actions demonstrate that his unsatisfactory participation in the reserves was most likely an isolated event not reflective of his overall character.  However, the Board found that the Applicant’s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.  Therefore the Board found that partial relief is warranted for equity reasons.  

Minority Opinion

None

Pertinent Regulation/Law

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 1995 until 31 Aug 2001.

B.  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 V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 Naval service.  The NDRB 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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