My 2004 MM now has 40000 mi. It had a flush at the dealer 2 years ago at 32000. It's also flinging itself in to neutral in the last week. I did notice that the overdrive lockout makes a difference, but I haven't really qualified it. I'm trying not to drive it until I take it to the dealer this Friday.
In the normal once or twice per week commute 23 miles to and from work (45 minutes), in Drive with the lockout disabled (normal), 2nd gear when the engine rpm reaches 2300-2500, it wants to shift into 3rd. Depending on traffic slowing down in front of me (happens between 35-45mph), the trans tries to go to 3rd, but comes back down to 2nd because of the traffic or an upcoming hill right at that shift point. After that, if it doesn't get into 3rd or 4th by 3000 or 4000 rpm, it goes to neutral (can't say for sure. I'm not fond of driving it this way to qualify it). I have noticed that if I enable the Overdrive Lockout at 2000rpm, it has shifted to 3rd when it gets higher in the rpm (not sure where). I have noticed that when I release the lockout it will either go to 4th or neutral (if the rpm is high enough). When there's no traffic and I've been driving for a while (with lockout disabled) and there's no upcoming hill at my 2-3 shift point, it will go from 2nd to 3rd and to 4th. I think this is because I'm moving on with authority and not just resting my foot on the accelerator pedal or covering the brake waiting to see what the traffic will eventually do.
The car seems to not like the commuting repetitive sequences of starting from a stop, 1st, 2nd, now everybody off the gas for a long distance, now everybody gently on the gas to about 40mph. At that time I'm free wheeling, adding gas because I'm not accellerating, figiting with the lockout, finally getting it to jump into 4th. Now the guys next to me want to race because I've been gunning my engine.
The commute has been like this since 2007 when they tore up the highway and force us off onto the side street to stop at that light. Then we get back on the highway, go for a while, then exit again because there's another light to drive under. 19 traffic lights in all. If there's any cross traffic waiting to cross, I will have to stop when I get to the light.
The transmission failing to engage through the full range of gears has happened on my last 3 commutes.
I thought the fluid might be low. Checked it several times. fluid covering the tip of the dipstick and along one side of the stick. I thought that since the stick is bending down the contortion of the tube, it's scraping off some fluid that hasn't drained back into the transmission. So I added 1.5 quarts of Mercon V at .5 quarts at a time. I checked it each time. Last check showed about a quart over full, maybe 1.5 quarts. The service manual says to lay the stick down on a white or dry (don't remember which word) and see where the fluid comes up to.
Anyway, I'm driving something else until I get it into the shop on Friday.
The engine has never died through all of this and I don't want it to start now if that's what I have to look forward to. Fluid is clean and does not smell burnt. Smells like almost fresh fluid.