ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20160928
Characterization of Service Received:  
Narrative Reason for Discharge:  UNSAT PARTICIPATION IN READY RESERVE
Authority for Discharge:  MARCORSEPMAN 6213 [FAILURE TO PARTICIPATE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED 
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	               	Active:	  

Period of Service Under Review:
Date of Enlistment:  20110520	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  NFIR (Discharge approved on 20160107)	Highest Rank/Rate:  LCpl
Length of Service: 
Inactive:    Year(s)     Month(s)   15 Day(s)
Active:      Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  36

Evaluation Marks (# of occasions):  Performance/Proficiency: NFIR   Behavior/Conduct: NFIR 
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  NDSM   

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  	SCM:  	SPCM:  	  CIVIL ARREST:          CC:  

Retention Warning Counseling:  

- 20130811:	For unexcused absence from drill 10-11 August 2013.

- 20130915:	For unexcused absence from drill 13-15 September 2013.

- 20150815:	For Unsatisfactory Participation in the Ready Reserves, accumulating over nine unauthorized absences within a 12 month period.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	

ADDITIONAL STATEMENTS

	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
26 November 2013 until present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant requests a change to his character of service contending that he missed drills in 2013 because he did not have a car in working order and was incapable financially to attend weekend drills that were two and a half hours from his home.     
2.	The Applicant contends that when given notice of administrative separations proceedings that he exercised his right to meet with counsel and to request a hearing, mailing his response to the notice to his command on 06 November 2013 and since then, he has not heard anything back from his command and has not received a DD 214.

Discussion

Date:  20170509		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (NDRB), under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

The Applicant's record of service included: 

Based on the Applicant’s Unsatisfactory Participation in the Ready Reserves, the command administratively processed the Applicant for separation.  When notified of administrative separation processing, the Applicant  their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.  

:  The Applicant requests a change to his character of service contending that he missed drills in 2013 because he did not have a car in working order and was incapable financially to attend weekend drills that were two and a half hours from his home.    The Applicant stated that he could not afford to rent a car and attempted to borrow a car from friends and family.  He also stated that he informed his command of this as well as him suffering from the recent loss of his uncle and his grandmother being diagnosed with severe Alzheimer’s disease.  The Applicant also contends that when given notice of administrative separation proceedings, he exercised his right to meet with counsel and to request a hearing, mailing his response to the notice of separation proceedings to his command on 06 November 2013 and since then, he has not heard anything back from his command and has not received a DD 214.  The Applicant provided a certified mail receipt showing receipt showing he sent mail his command  that arrived on 08 November 2013, but it is not specifically documented what the contents of this mail was.  The Applicant stated that he was in contact with his command notifying them that he could not attend his drills.  After sending his command his request for a hearing, the Applicant stated that he contacted the Quantico Law Department to find out the status of his request.  The Applicant provided e-mail correspondence with a Corporal at the National Capitol Region Defense Services Organization requesting an update on his case.  It is unknown why the Applicant was no longer in contact with his command to determine the status of hearing request.  The Applicant states that he did not receive an update as to when his hearing would take place.    

The record shows that the Applicant’s command documented their attempt to notify the Applicant.  An Affidavit of Service, dated 14 November 2013, certifies the attempts to serve the Applicant’s Notification and Acknowledgment of Rights both in person and by certified mail and that the Applicant did not return the Acknowledgement of Rights.  In the Staff Judge Advocate’s letter on 27 November 2013 to the Commanding General, Fourth Marine Aircraft Wing, he stated that the Applicant’s case is sufficient in law and in fact and that the Applicant did not return the acknowledgement of rights in the allotted time and that the unit documented this on 14 November 2013.

The records shows that the Applicant was given notice of two different separation proceedings (one in 2013 and one in 2015) and both were approved (the second one on 07 January 2016).  Despite the Applicant’s issues with the first separation proceeding, the record shows that he was able to serve after his first separation was approved.   The NDRB was unable to determine why there were two separation proceedings and why the first separation proceeding was not carried out after approval by the Commanding General, 4th Marine Air Wing.  The Applicant only addressed issues concerning the first separation proceedings initiated in 2013.  During the second separation proceedings that were initiated in 2015, the Applicant waived his rights to counsel and to request an Administrative Discharge Board.  If the Applicant felt that there were issues with his separation, it was his obligation to contest this at the time they were made.  During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant did not provide any information or state any issues into the circumstances of his second notification proceedings.
 
In terms of the Applicant not receiving a DD Form 214 after being separated, a DD Form 214 is issued to per personnel released from active duty.  The record shows that Applicant received a DD Form 214 for active duty service from 24 October 2011 to 27 July 2012.  The Applicant is not eligible to receive a DD 214 from being separated from the Navy Reserves.  

The NDRB determined that the Applicant’s discharge was proper and equitable.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  UNSAT PARTICIPATION IN READY RESERVE with a corresponding separation code of JHJ5, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures: If you believe 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades: There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

Post-Service Conduct: The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.