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

 ex-PFC, USMCR
Docket No. MD04-00786

Applicant’s Request

The application for discharge review was received on 20040413.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Sec’s Plenary Auth.”  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed a civilian attorney as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041027.  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 and reason for discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/Failure to Participate (Reserve not on active duty) (administrative discharge board required but waived), authority:  MARCORSEPMAN 6213.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel (civilian counsel):

“1.  Issue #1.  Propriety.  There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance and the rights of the applicant were prejudiced thereby.  Specifically, former Private First Class V_ M. B_ (Applicant) (hereinafter referred to as “Mr. B_ (Applicant)” or “applicant”) was not properly notified of his pending administrative discharge because his unit did not send the notification documents to the address where he was then residing, and the address to which his unit sent the notification was not his last known address.  SecNavInst 5420. 174C, enclosure (1), paragraph 9.2.a(2) at Appendix to this Brief (hereinafter referred to as “App.”), page 84.

2.  Issue #2.  Propriety.  There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance and the rights of the applicant were prejudiced thereby.  Specifically, applicant’s military records indicate a nonjudicial punishment (NJP) that was unlawfully held and which later formed one of two bases for administrative discharge: 1) misconduct - drug abuse, and 2) unsatisfactory participation in the Reserves.  The NJP was unlawful because applicant was denied his right to consult with counsel or to refuse NJP.  Not only did the applicant deny using any unlawful drugs, but he subsequently passed a polygraph examination confirming this fact. Even if he had used cocaine, the NJP attempts to make punishable an offense under the UCMJ for which applicant was not subject to the UCMJ.  His use of cocaine would have had to occur at a time and place where applicant was not subject to the UCMJ as a reservist.  These procedural and legal errors are impliedly confirmed when the Deputy Staff Judge Advocate who reviewed the administrative discharge package only approved a discharge based upon unsatisfactory participation - and not misconduct - when misconduct is the preferred basis for discharge in cases where both are permitted.  The command did not initiate administrative discharge proceedings until more than one year and seven months after the NJP. SecNavInst 5420. 174C, enclosure (1), paragraph 9.2.a(2) at App., pg. 84.

3.  Issue #3.  Equity.  A discharge upgrade is warranted based upon consideration of the applicant’s service record and other evidence presented to the Navy Discharge Review Board (NDRB) viewed in conjunction with applicant’s capability to serve, to include the extenuation and mitigation of applicant’s family and personal problems that may have affected applicant’s ability to serve satisfactorily.  Specifically, the only reason applicant missed drills was that he went to Spain to assist his Father with a failing business.  Applicant notified his command of this fact, was assured that he could make up the time, and provided contact information to his command.  The command even sent him a reenlistment extension form, which the applicant completed and returned to the command.  When he returned from Spain, he discovered he had been discharged.  SecNavInst 5420. 174C, enclosure (1), paragraph 9.3.c(2)(b) at App., pg. 87.

4.  Issue #4.  Equity.  A discharge upgrade is warranted based upon consideration of applicant’s service record and other evidence presented to the NDRB viewed in conjunction with Applicant’s capability to serve, to include the arbitrary and capricious actions taken by those in Mr. B_’s (Applicant’s) command.  This includes actions by individuals in authority that constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.  Specifically, applicant’s command conducted an unlawful NJP, then used the results of that NJP to justify his discharge.  Further, the command failed to notify applicant regarding his administrative discharge even though the command had been given the address to contact applicant to permit applicant to exercise his rights during the administrative discharge process.  SecNavInst 5420. 174C, enclosure (1), paragraph 9.3.c(2)(c) at App., pg. 87.

5.  Issue #5.  Equity.  A discharge upgrade is warranted based upon consideration of the fact that all other military services have given the majority of servicemembers a discharge under honorable conditions (general) or an honorable discharge when discharging those members for unsatisfactory participation in the reserves.  Statistics are provided for years 2001 and 2002 for the other three military services.  App., pgs. 102c-102h.

6.  Issue #6.  Equity.  A discharge upgrade is warranted based upon consideration of applicant’s service record and the other evidence presented to the NDRB viewed in conjunction with applicant’s capability to serve to include the evidence showing applicant’s outstanding post-service conduct.  Besides having no criminal record and obtaining both bachelors and masters degrees, applicant has been deeply involved in community service and has become a regionally prominent and successful businessman.  SecNavInst 5420. 174C, enclosure (1), paragraph 9.3.c(1)(j) at App., pg. 86.”

Additional issues submitted by Applicant’s counsel/representative during the hearing (civilian counsel):

7.  “Issue #7.  Equity. This discharge is not equitable because at the time of issuance, the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration.  This equitable basis for upgrade requires that the current policies or procedures represent a substantial enhancement of the rights afforded an applicant in such proceedings if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.  Specifically, the regulations that currently exist for discharging a Marine for unsatisfactory participation in the Reserves has significantly greater counseling requirements than existed in 1990, when Mr. B_’s (Applicant's) discharge was approved.  See SecNavlnst 5420.174C, enclosure (1), paragraph 9.3 a, at the Appendix of the Brief, pg. 85.”

Documentation

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

Eighty-three pages from Applicant’s service record
SECNAVINST 5420.174C, Chapter 9 (4 pages)
Decisional documents from web site; Case MD02-00145 (9 pages)
Decisional documents from web site; Case MD01-00900 (8 pages)
Letter from U.S. Army Reserve Personnel Command, dtd November 8, 2002 
(2 pages)
Letter from HQ AFRC/SC (FOIA Office), dtd 16 Oct 2002 (2 pages)
Letter from Commander Naval Reserve Force, dtd 15 Aug 2002 (2pages)
Applicant’s unsworn declaration, dtd March 22, 2004 (4 pages)
Applicant’s résumé (3 pages)
Polygraph interview and examination report, dtd March 11, 2004
Polygraph interviewer certifications (4 pages)
Criminal record check, dtd 10/13/2003 (2pages)
University of Miami transcript, dtd 10/31/03 (3 pages)
Bachelor of Arts in Political Science, dtd December 9, 1988
Character reference, dtd November 18, 2003 (2 pages)
Character reference, dtd October 15, 2003
Character reference, dtd October 9, 2003
Character reference, dtd November 14, 2003
Character reference; DD Form 370, dtd 20031106 (3 pages) 
Certificate of outstanding services, dtd 26 April 1986
Award of honor, dtd 27 May 1982
Letter to Applicant from the President of the United States, dtd December 18, 1987
Certificate of completion, dtd October 1984
Certificate of membership (The Rotary club of Miami), dtd 23 May 2002
South Florida, The Business Journal article, dtd April 18-24, 2003 (2 pages)
The Traveler, Hispanic Business article (2 pages)
Newspaper ad from the Miami Herald Travel Section, February 22, 2004
Sun-Sentinel, Society (4 pages)
University of Miami School of Business, Alumni Successes, Summer 2003
Spotlight article, dtd May 12, 2003
South Florida, The Business Journal article, dtd April 21, 2003 (3 pages)*
South Florida, The Business Journal article, dtd July 28, 2003 (4 pages)
Business Briefs, last updated 26 September 2003 (2 pages)
Article, dtd August 26, 2003
MCO P1001R.1J (Marine Corps Reserve Administrative Management Manuel)(47 pages)
BCNR Decision, Docket No. 3 839-99 of 29 Sep 1999 (2 pages)
Valoremgroup company brochure
	
   * Internet download and print out 10/21/2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  860331		Date of Discharge:  900126

Length of Service (years, months, days):

	Active:    00  04  14
	Inactive:  03  08  06

Age at Entry:  20			Years Contracted:  8

Education Level:  14			AFQT:  62

Highest Rank:  LCpl  (MOS:  0352, Antitank Assault Guided Missile Man) 

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (7)			Conduct:  3.9 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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:

860331:	Enlistment contract into the USMCR documents the Applicant’s acknowledgement of the requirement to serve in the Marine Corps Reserve for an initial military service obligation of eight (8) years.

860502:	Applicant reported for initial tour of active duty for training.

860726:	Applicant released from initial tour of active duty for training with honorable by reason of completion of required active service (USMCR) IADT.

870820:	Applicant released from active duty training

880208:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 880119, tested positive for cocaine.

880410:	NJP for violation of UCMJ, Article 112a:
Specification: Wrongfully posses some amount of cocaine a drug prohibited by Schedule I of the Drug Control Act, by having said amount in his body and urine on 880110.
Awarded reduction to E-2.  Reduction suspended for 6 months.  Not appealed.

881021:	Counseled for deficiencies in performance and conduct.  [Poor drill attendance.]

891013:	Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter.

891013:	Letter of intent to administratively separate under other than honorable conditions for misconduct due to drug abuse and the failure to participate in reserve training was sent via certified mail, return receipt requested.  The failure to acknowledge official certified mail constitutes acknowledgement and waiver of all rights (MARCORSEPMAN par. 6303).

891013:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

891121:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to unsatisfactory participation in the Ready Reserve.  The factual basis for this recommendation was your positive urinalysis for cocaine conducted on 880110 and your 12 unexcused missed drill.

900111:	SJA review determined the case sufficient in law and fact.

900118:	GCMCA [Commanding General, 4th Marine Division (Rein)] directed the Applicant's discharge under conditions other than honorable by reason of misconduct due to unsatisfactory participation in the Ready Reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900126 under other than honorable conditions for misconduct due to unsatisfactory participation in the Ready Reserve (A, B, and C).  The Board presumed regularity in the conduct of governmental affairs (D).  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 (E and F).

Issues 1 & 3:  The Applicant contends his ability to satisfactorily comply with his enlistment agreement was directly affected by his family situation at the time.  Specifically, he went to assist his father in Spain with a failing business.  The applicant contends he notified his command and arrangements were made in order to accommodate his situation.  Additionally, he contends his “command even sent him a reenlistment extension form, which (he) completed and returned.”  The record does not support the Applicant’s contention, nor did the applicant provide any documentary evidence prior to or during the hearing to support this testimony.  The Applicant recounted vaguely talking to someone, possibly, a sergeant, who may have transferred before the Applicant’s administrative separation paperwork was processed.  By Marine Corps order, it is incumbent upon the Marine to make the necessary changes to his contact/recall data in order to prevent situations where the command is unable to recall the individual Marine.  The notice of separation proceedings was mailed to the address listed in the Applicant’s record.  This address was also listed as his mother’s and grandfather’s address of residence.  The NDRB recognizes serving in the United States Marine Corps is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country.  It must be noted most members of the Corps serve honorably; thereby, earning honorable discharges.  In fairness to those Marines, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  An upgrade to honorable would be inappropriate.  Relief denied.

Issues 2 & 4:  The Board acknowledges the Applicant’s performance on a voluntary non-government sanctioned polygraph examination, that provided results supporting his assertion that he did not use the illegal drugs while in a drilling status; however, there is credible evidence in the record the Applicant used illegal drugs.  While the Board questions the propriety of the nonjudicial punishment (NJP) for possession, the Board does not judge this as a prejudicial error since it was not the basis for the Applicant’s discharge.  Additionally, the board found no evidence to support the allegations the Applicant was denied his right to refuse NJP.  The record indicates the Applicant was apprised of his rights, but refused to sign the page eleven acknowledgement of those rights.  Relief is therefore denied.   

Issue 5:  Since each service handles their administrative discharge process according to service culture and the unique demands necessitated by service within that branch of the Armed Forces, the Applicant’s discharge is entirely within the norm for the Marine Corps.  The statistics presented by the Applicant’s attorney, while supportive of the idea of other military services’ leniency, were from an era eight years after the Applicant’s discharge.  Relief denied.

Issue 6:  The Applicant requested his discharge be reviewed in light of his post-service accomplishments.  The Board was impressed with the Applicant’s post-service efforts, but does not consider these accomplishments to be of sufficient nature to overcome the Applicant’s willful failure to participate in reserve drills he knew he should be attending. 
The Applicant signed a contract on 860331, while enlisting into the USMCR acknowledging his understanding of the requirement to serve in the Marine Corps Reserve for an initial military service obligation of eight (8) years.  This obligation requires participation in 48 scheduled drills (usually one weekend per month) and not less than 14 days (exclusive of travel time) of active duty training per year for 6 years upon completion of initial active duty training.  The Applicant was administratively separate with an under other than honorable conditions discharge for failure to participate in reserve training, specifically missing scheduled drills totaling 20 unexcused absences.  The letter was sent via certified mail, with return receipt requested.   The Applicant stated during his personal appearance hearing that he did not return to his unit for six months after being told to do so during a telephone call he initiated from Spain.  The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  The record is devoid of any evidence the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 7:  The Marine Corps policy regarding the disposition of reserve personnel who fail to participate in required drills, under circumstances similar to the Applicant’s case remains substantially the same.  Today, as it was at the time of the Applicant’s separation from the Marine Corps, this usually results in an under other than honorable conditions discharge.  The fact remains the applicant, by his own testimony, took six months to return to his command after being told to do so in a telephone conversation he initiated with his command.  Again, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  It would be inappropriate to upgrade the Applicant’s discharge to honorable based on this issue.  Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or making recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces as discussed during the Applicant’s personal appearance hearing.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  This issue does not serve to provide a foundation upon which the Board can grant relief.  

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that the Applicant’s failure to attend drills was the reason he was discharged.  No other Narrative Reason for Separation could more clearly describe why the he was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

The following is provided for the Applicant’s edification.  The NDRB has no authority to provided additional review of any case occurring more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

F.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023