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

 ex-PFC, USMCR
Docket No. MD04-00946

Applicant’s Request

The application for discharge review was received on 20040520.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022.  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/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

Applicant’s issues, as stated on the application:

“1.  On March 13th of 1987 I enlisted in the USMCR for 4 years Regular Reserve and 4 years Inactive Ready Reserve to total 8 years with my separation from RR to IRR to commence in Oct of 1991.  In my 4 yrs of Regular Reserve I maintained pro and con marks of 4.5 or higher, I had achieved my ranks by meritorious promotions and was selected to be meritoriously promoted to E-5 Sgt rank, I had served on the front lines and earned a Combat Action Ribbon during Desert Shield/Storm with this reserve unit when activated and continued to drill after returning until Sept 1991.  At this time I was injured at my civilian job as a Police Officer.  My foot and ankle where broken in 13 places and I had injured my knee.  I contacted my platoon Sgt and the reserve center by phone and explained my injuries and that I did not have the ability to transport myself to the drill center to attend drill.  I continued to call the center to update then on my condition and 3 surgeries.  In Dec of 91 I was transported to the Broken Arrow. OK reserve center with my medical records to be checked out by the Navy doctor there.  I was told at that time that the Commanding Officer had recommended me for a discharge.  At that time I assumed it was because I was at the end of my enlistment in the Regular Reserves or because of my injury.  I failed to ask at that time about the missed drills because I was under the impression I could make them up after I healed and I had checked in every month and the Navy doctors has seen me to verify my injuries where real.  In March of 1992 I received a release to return to duty from my civilian doctor at which time I returned to the reserve center in Broken Arrow, OK to check in, I was notified that I had been discharged in Feb and that all information would be mailed to me.  I never received it and in June of 2001 I tried to reenlist and discovered my discharge status and RE 4 code.  I feel sure I was past my enlistment and an exceptional Marine that this discharge was unfair.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		None

Period of Service Under Review:

Date of Enlistment:  870313		Date of Discharge:  920326

Length of Service (years, months, days):

	Active:    00 10 12
	Inactive:  None

Age at Entry:  18			Years Contracted:  8 

Education Level:  12			AFQT:  54

Highest Rank:  Cpl			 MOS: 3052

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (20)		Conduct:  4.0(20)

Military Decorations:  CAR

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM

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:

870312:	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.

871013:	Applicant entered Active Duty for initial tour of active duty training.

880305:	Applicant released from initial tour of active duty for training.  Honorable discharge, completion of required active service.

901128:	Applicant entered active duty (involuntary recall) for Operation Desert Shield/Storm.

910518:	Applicant released from active duty.  Honorable discharge, completion of required active service (involuntary recall). 

910908:	Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter # P 404 368 835.

910908:	Commanding Officer notified the Applicant of Intent to for administrative reduction due to unsatisfactory participation based upon the following reasons: UA from scheduled Drills; 910907 (AM) (PM), 910908 (AM) (PM).  Applicant notified via certified letter #P 404 368 835.

910908:	Counseled for deficiencies in performance and conduct.  [Failure to attend, without excuse from competent authority, the following reserve training drill periods: drill date: 910907, drill date 910908.  You are advised that you have been declared an unsatisfactory participant in the Marine Corps Reserve die to the failure to attend.  You are reminded of your obligation and to satisfactorily participate in, at least 48 scheduled IDT periods during each year.  You are further reminded absences may be granted and the proper procedures which will be followed when failure to participate satisfactorily attendance occurs.  Only the Commanding Officer, the Executive Officer or the Unit 1stSgt are authorized to grant and excused absence for IDT or AT missed for reasons beyond your control die to health or welfare of your immediate family.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. (PG 11 entry in service record book, not signed by Applicant) 

911016:	Commanding Officer notified the Applicant that he has been administratively reduced to Lance Corporal with a date of rank of 910916.  Reason:  failure to resolve unexcused absences from the regular scheduled drills for 910907 and 910908 as stated in the CO’s letter of 910909.

911109:	Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter # P 404 666 213.

911109:	Counseled for deficiencies in performance and conduct.  [Failure to attend, without excuse from competent authority, the following reserve training drill periods: drill date: 911108, drill date 911109.  You are advised that you have been declared an unsatisfactory participant in the Marine Corps Reserve die to the failure to attend.  You are reminded of your obligation and to satisfactorily participate in, at least 48 scheduled IDT periods during each year.  You are further reminded absences my be granted and the proper procedures which will be followed when failure to participate satisfactorily attendance occurs.  Only the Commanding Officer, the Executive Officer or the Unit 1stSgt are authorized to grant and excused absence for IDT or AT missed for reasons beyond your control die to health or welfare of your immediate family. ] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. (PG 11 entry in service record book, not signed by Applicant) 

911208:	Commanding officer notified the Applicant of unsatisfactory drill participation via certified letter # P 894 747 947.

911208:	Counseled for deficiencies in performance and conduct.  [Failure to attend, without excuse from competent authority, the following reserve training drill periods: drill date: 911206 (PM), drill date 911207 (AM/PM), drill date 911208 (AM/PM).  You are advised that you have been declared an unsatisfactory participant in the Marine Corps Reserve due to the failure to attend.  You are reminded of your obligation and to satisfactorily participate in, at least 48 scheduled IDT periods during each year.  You are further reminded absences may be granted and the proper procedures which will be followed when failure to participate satisfactorily attendance occurs.  Only the Commanding Officer, the Executive Officer or the Unit 1stSgt are authorized to grant and excused absence for IDT or AT missed for reasons beyond your control die to health or welfare of your immediate family. ] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued. (PG 11 entry in service record book, not signed by Applicant) 

911213:	Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail # P 894 747 966, return receipt requested.  

911213:  	Applicant advised of his rights via certified mail # P 894 747 966, return receipt requested.

911216:	Affidavit of service by mail.  Cpl L_G_M_, SRB/Legal Chief of I-I Staff, AT (TOW)CoLt, 4th TkBn, 4th MarDiv, Broken Arrow, OK, mailed the Notification of Separation Proceedings, Acknowledgement of Rights form, and the Purpose and Scope of the Navy Discharge Review Board and Board for Correction of Naval Records form, by certified mail # P 894 747 966, return receipt requested.
 
920122:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to unsatisfactory participation in the Ready Reserve.  The factual basis for this recommendation was: “Unexcused absence from regular scheduled drills on 910907 (AM/PM), 910908 (AM/PM), 911108 (PM), 911109 (AM/PM), 911206 (PM), 911207 (AM/PM), 911208 (AM/PM).”

920226:	SJA review determined the case sufficient in law and fact.  

920227:	GCMCA CG, 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 920326 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).

Issue 1.  The Applicant contends that a physical injury prevented him from attending regularly scheduled drills during September 1991 and that he called the reserve center to explain his situation. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The Applicant did not provide any documentation to support his contention that a physical injury prevented him from fulfilling his contract.  Further, the Applicant did not provide any documentation to support his contention that he notified his unit of his situation and the Applicant failed to respond to certified mail sent to him by the Commanding Officer.    The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

Issue 2.  That Applicants states that he was “past my enlistment” in regards to the unexcused absences from regularly scheduled drills.  On 870313 the Applicant signed an enlistment contract into the USMCR that acknowledged the requirement to participate in 48 scheduled drills and not less that 14 days of annual training per year for 6 years upon completion of initial drill.  The Applicant became an unsatisfactory participant in September of 1991, within the 6 year period of his enlistment contract.  Relief denied.

Issue 3.  The Applicant states that he was an “exceptional Marine”.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 service was marred by 12 unexcused absences from regularly scheduled drill periods.  The Applicant’s Commanding Officer sent 3 letters of “Unsatisfactory Drill Attendance” via certified mail to the Applicant; the Applicant failed to respond to these letters.   The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief 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 5420.174C 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