ex-, USMC
MD07-00191

Current Discharge and Applicant’s Request

Application Received:  20061124 	     Characterization Received:  
Narrative Reason:  UNSATISFACTORY PARTICIPATION IN READY RESERVE        Authority:  MARCORSEPMAN 6213

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Should have received hardship discharge
			2. Improper rights acknowledgement for drug abuse
			3. Incomplete service record demonstrates improper unit administrative procedures
			4. Post-service conduct

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  UNSATISFACTORY PARTICIPATION IN READY RESERVE

Date:  20080130		Location:  Washington D.C.	Representation:  

Applicant Testified:  	Applicant Available for Questions:  	
Witnesses:  2:  Applicant’s husband, Mr. M_ C_, and brother, Mr. J_ K_.
Observers:  1: NDRB member, Maj D_ E_, USMC.

Discussion

Issue 1 ().  The Applicant forthrightly acknowledged that she did not participate in required drills from April through October 1998.  She claimed that her mother suffered a severe and unexpected heart attack in April 1998, and that as a result the Applicant was expected by her family to provide financial support to her parents.  This required her to take two full time jobs conflicting with her drill schedule, and she was unsuccessful in her efforts to reconcile the competing demands of her family expectations, civilian employers, and obligation to the Marine Corps.  The Board was sympathetic to the circumstances in which the Applicant found herself; however, the Board was not convinced that those circumstances qualified her for a hardship discharge.  Further, the Board did not doubt that the Applicant believed that her priorities required her to miss drills and subjectively desired to reconcile her status, and the Board found it extremely unfortunate that the Applicant succumbed to her family’s expectations and pressure, whether overt or implied, to minimize and/or ignore her service obligation while at the same time failing to take reasonable steps to support her in her efforts to financially provide for her mother.  However, the Board’s objective assessment was that the Applicant’s absence was ultimately a voluntary choice for which she was properly held to account, and that her and her family’s failure at the time to recognize and/or appreciate the consequences of that choice did not constitute grounds to change those results now.   The Board noted that the while difficult, the Applicant’s situation was not insurmountable, as evidenced by the fact that she was able to travel to her reserve unit on at least one occasion to turn in her issued gear.

Issue 2 (). The Applicant indicated that she did not return the acknowledgement and election of rights because it inaccurately referred to her separation processing on the basis of drug abuse, in addition to her unsatisfactory participation.  While the Board appreciated the Applicant’s subjective reaction to that error, the Board determined that this apparently mere administrative error did not mislead her or deceive her in any way, and could have been easily and convincingly identified and addressed had the Applicant chosen to exercise her rights in response to the otherwise proper notification.  

Issue 3 ().  Upon review, the Board found the Applicant’s service record was essentially complete, although the printed Basic Individual Record and Basic Training Record were only current as of 19970813.  The Board noted that the Applicant’s microfiche Official Military Personnel File was, unfortunately, of extremely poor quality.  However, the Board was confident that it had sufficient records to accurately assess the Applicant’s service, and that any administrative errors or gaps were relatively minor and insufficient to raise doubts about the validity of the record.

Issue 4 ().  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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 could 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.  The Applicant provided credible documentary and testimonial evidence of her post-service achievements in education, employment, and volunteer efforts, especially in regard to military associations.  She also expressed an intention and desire for continued service in the Army Reserves.  The Board noted that it has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities, and hereby refers the Applicant to the addendum for further information on this point.  In addition to her positive post-service accomplishments, however, the Applicant, in response to being asked if she had any issues with any type of substance abuse, admitted having received a DUI within the past few years.  The Board noted that the equivalent misconduct under the Uniform Code of Military Justice constitutes a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial, and is itself a severe enough offense to constitute a basis for administrative separation for misconduct with a characterization of service as under other than honorable conditions.  Further, the Applicant was specifically asked if she had ever used illegal drugs and denied having done so.  However, the Applicant admitted in her National Security Questionnaire to having used marijuana on 2 occasions, and her service record clearly indicates that she received an enlistment waiver for her pre-service drug use.  The Board specifically considered the possibility that the Applicant had construed the questions regarding substance abuse as relating only to her post-service period, but concluded that the questions were clear in their intended scope.  While the Board as a whole did not find the Applicant incredible, her responses did raise some doubt as to the weight of her evidence.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate its assessment of the conduct which precipitated the discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Dissenting Opinion

The Applicant had credible, trouble free, and continuous drilling service from January 1996 until April 1998.  Only after a well documented family medical situation occurred to the Applicant’s mother did her service commitment begin to suffer.  This Applicant did not simply run away from her military responsibilities while handling her family’s emergency.  There is evidence and personal testimony that she tried to work with the drilling unit to uphold her military commitment.  This even after quitting college and starting two fulltime jobs in order to help pay expenses for her mother’s medical care.  Her situation was exacerbated by the fact that she was the only individual, out of two other working adult siblings and a father, who was financially contributing to this family emergency.  There is no evidence, based on past drilling participation, or doubt that had this Applicant not had this family emergency to shoulder alone, she would have completed her contract with the government in a honorable manner.  Additionally, her post-service is quite good.  She has committed herself to the field of critical care nursing and is active in her local veteran’s organizations.  Her service, mitigating circumstances, and post service selflessness deserve of an upgrade to the characterization of service as general (under honorable conditions).          

Summary of Service

Prior Service:
Inactive: USAR	19950215 - 19950508  		Active:   
Period of Service Under Review:
Date of Enlistment: 19950623	Years Contracted:   (6 SMCR, 2 IRR)	          Date of Discharge:  19990115
Length of Service: 	Active:  00  Yrs  04  Mths  08  Dys		Inactive: 03  Yrs  02  Mths  14  Dys 
Education Level:  15	Age at Enlistment:  	AFQT:  78	MOS:  0431  Highest Rank:  
Proficiency/Conduct marks (# of occasions):  4.3(3)/4.2(3)	Awards and Decorations:  NDSM, LOA, Rifle SS

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19950622:	Applicant acknowledged 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.

19950809:	Applicant reported for initial tour of active duty for training.

19951216:	Applicant released from initial tour of active duty for training by reason of completion of required active service (USMCR) IADT with characterization of service as Honorable, and transferred to MACS-24, 4th MAW, Dam Neck, VA.

19960109:	Applicant transferred to MWSG-47, 4th MAW, Selfridge AFB, MI.

Discharge Process

Date Notified:	19991006, VIA CERTIFIED MAIL
Basis for Discharge:	 MARINE CORPS RESERVE
Least Favorable Characterization:	
Commanding Officer’s Intended Recommendation:	

Date Applicant Responded to Notification:		DID NOT RETURN ACKNOWLEDGEMENT
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19990115)
SJA review (date):	 (date illegible)
Separation Authority (date):	COMMANDER, MARINE FORCES RESERVE (date illegible)
              Basis for discharge directed:	ILLEGIBLE
              Characterization directed:	ILLEGIBLE
Date Applicant Discharged:	19990115

20060427:	NDRB Documentary Review, Docket Number MD05-01268, conducted.  No change warranted.

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    		
Other Documentation (Describe)  Nursing credentials; Association cards, Business cards; Resume

Pertinent Regulation/Law

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 
31 August 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 August 1995, 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, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

E.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111, Drunken or reckless operation of vehicle, aircraft, or vessel.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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