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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD06-00341

Applicant’s Request

The application for discharge review was received on 20051219.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant designated civilian counselor as the representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061206.  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 by reason of misconduct due to drug abuse.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 18, Remarks, should include:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 19830421 UNTIL 20000808.”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application to the Board:

“The Company CO substantially violated the appellant’s due process rights by denying him the opportunity to respond to new “information” that was made a part of the dismissal package sent to HQMC; The preponderance of the evidence supported a medical discharge.  The enclosed record reveals the fact that the Company CO took exception to the recommendations of the Medical Evaluation Board whose diagnosis was reached after a period of inpatient treatment, psychological testing, and after considering the contrary indications of manipulation and deception contained in sub-enclosures (4) and (5) of enclosure (14) to TAB “A”.  In relevant part: sub-enclosure (5) states, “For diagnostic clarification, psychology was consulted for psychological testing.  The testing was consistent with the duel diagnosis of PSTD and Panic Disorder with agoraphobia.”  Finding that the appellant’s misconduct was ‘significantly’ influenced by his medical condition, the medical evaluation board recommended the Appellant be medically discharged (See sub-enclosure (5) of enclosure (14) to Tab A).  In contrast, the Company CO wrote a scathing memorandum filled with hearsay evidence (See enclosure (15).  This unchallenged document was, at the last possible moment, inserted into the administrative discharge package that was being forwarded to HQMC.  Contrary to regulations and the dictates of due process, this memorandum was never shown to the Detailed Defense Counsel or the Appellant.  In fact, Counsel learned of its existence only after the Appellant had already been separated from the Marine Corps (See TAB C).  Accordingly, the Appellant has been denied any opportunity to rebut or address the information contained in the memorandum thus depriving him of a fair hearing on the allegations contained in the memorandum authored by his Company CO.”

Documentation

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

Thirty-four pages from Applicant’s Service Record Book (4)
Naval Criminal Investigative Service Report of Investigation (Interim), dtd 020612 (5 pages) (4)
Stafford County Warrant of Arrest, dtd September 29, 2001 (8)
Stafford County Commitment Order, dtd October 7, 2002 (4)
Notification and Election of Rights for NJP, undated (6 pages) (4)
Four pages from Unit Diary Retrieval System (4)
Ltr from Director, CSACC, MCB Quantico, VA, dtd January 7, 2003 (2 pages) (4)
Circuit Court of the City of Fredericksburg Conviction and Sentencing Order, dtd May 21, 2003 (9 pages) (4)
Ltr from the Commonwealth of Virginia, Department of Corrections, A_ E. A_, Probation/Parole Officer, dtd October 7, 2003 (2 pages) (4)
Ltr from Staff Sergeant N_ F. V_ (Applicant), Waiver of Administrative Discharge Board, dtd October 3, 2003 (4)
Rebuttal to Proposed Administrative Separation from Captain J_ P. S_, Detailed Defense Counsel, dtd October 15, 2003 (46 pages) (4)
Ltr from Captain J_ P. S_, USMC, Detailed Defense Counsel, dtd March 11, 2004 (3 pages) (7)
Statement from Civilian Psychiatrist, L_ V_ D_, M.D., and K_ H_, Care Coordinator, Cobb Outpatient Services, dtd August 30, 2004 (4)
Statement from Civilian Psychiatrist, C_ W_, M. D.,  and K_ H_, Care Coordinator, Cobb Outpatient Services, dtd January 20, 2005 (4)
Memorandum from COL T_ N_, MD, MC, USA, Chief, Inpatient Psychiatry; CPT A_ J_, DO, MC, USA, Psychiatry Resident; and LT P_ C_, DO, MC, USNR, Staff Psychiatrist, Walter Reed Army Medical Center, dtd March 19, 2003 (2 pages) (3)
Applicant’s DD Form 214 (Member 4) (3)
Ltr from Flint & Connolly, LLP, Attorneys at Law, G_ L. B_, Attorney, dtd January 17, 2006 (3) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19830217 – 19830420		COG
	Active:   USMC	19830421 – 19861210		HON
		USMC	19861211 – 19900328*		HON
		USMC	19900329 – 19940328*		HON
		USMC	19940329 – 19951003*		HON
		USMC	19951004 – Not available		HON

Period of Service Under Review:

Date of Enlistment:  20000809		Date of Discharge:  20031231

Length of Service (years, months, days):

Active:    03  04  23  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  347 days (per DD Form 214)
	Confinement:		    27 days

Age at Entry:  36

Years Contracted:  2 

Education Level:  12				AFQT:  66

Highest Rank:  SSgt				MOS:  0369/0311

Final Enlisted Performance Evaluation Averages (number of marks):

Applicant’s Fitness Reports were available for the Board to review

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Marine Corps Good Conduct Medal (3d Award), Navy and Marine Corps Achievement Medal (2nd Award), Navy and Marine Corps Commendation Medal (2nd Award), Secretary of Transportation Commendation for Achievement, Combat Action Ribbon (Grenada, Carriacou), Combat Action Ribbon (Beirut), National Defense Service Medal (2nd Award), Armed Forces Service Medal, Sea Service Deployment Ribbon, Humanitarian Service Medal, Expeditionary Medals (Navy and Marine Corps) (Beirut), Armed Forces Expeditionary Medal (Grenada), Joint Meritorious Unit Award, Meritorious Unit Commendation, Navy Unit Commendation, Certificate of Commendation (3rd award), Certificate of Appreciation (3rd Award), Meritorious Mast (2nd Award), Letter of Appreciation, Rifle Qualification Badge (Expert) (11th Award), Pistol Qualification Badge (Expert) (2nd Award)

*Extracted from dates of re-enlistment indicated in service record.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

000809:	Applicant re-enlisted this date for two (2) years.
	[Extracted from MCTFS, Basic Individual Record, dtd 020513.]

001001:	Applicant required but did not fire M16 service rifle (completed KD course, but did not complete field firing) and M9 service pistol for qualification during fiscal year 2000.
	[Extracted from Fitness Report for the period 2000515 – 20001231.]

001213:	Counseling:  Advised of deficiencies in performance and conduct (Poor performance to adhere to weight control standards).  Necessary corrective actions explained, sources of assistance provided, discharge warning issued.  Applicant chose not to make a statement.  

001220:	Applicant placed on weight control program for second time.  Applicant seen by appropriately credentialed health care provider and not diagnosed as being in excess of weight and body fat standards as the result of an underlying or associated disease.
	[Extracted from Fitness Report for period 20000515 – 20001231 and Counseling dtd 010406.]

010406:	Counseling:  Advised of deficiencies in performance and conduct (Poor performance: failure to adhere to weight control and military appearance standards.  Specifically being placed on weight control on 000523 and for the second time on 001221).  Necessary corrective actions explained, sources of assistance provided, discharge warning issued.  Applicant chose not to make a statement.  

010929:	Applicant arrested by Stafford County Sheriff’s Office, Stafford County, VA, for attempting to obtain a fraudulent prescription.  Incarcerated on $7,500.00 bond and charged with two (2) counts of section 18.2-258.1 (Obtaining Drugs by Fraud) of the Virginia Criminal Code.
	[Extracted from NCIS ROI (Interim) dtd 020612, provided by Applicant.]

011107:	Applicant arrested by Fredericksburg Police Department, Fredericksburg, VA, for prescription fraud.  Held without bond.
	[Extracted from NCIS ROI (Interim) dtd 020612, provided by Applicant.]
011115:	Counseling:  Advised of deficiencies in performance and conduct (Attempting to buy unauthorized prescription drugs on or about 011107 under the names of other persons, in which resulted in second arrest and detainment by civilian authorities).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose to make a statement.  No statement found in service record.

011115:	Counseling:  Advised of deficiencies in performance and conduct (Inappropriate relations with a woman who is not wife, while still residing in base housing).  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  Applicant chose to make a statement.  No statement found in service record.

020312:	Applicant to unauthorized absence.

020314:	Applicant from unauthorized absence.

020409:	NJP for violation of UCMJ, Article 86:  Unauthorized Absence.
	Specification:  Was, between 1300, 020312, and 0750, 020314, UA from his appt. place of duty.  
Award:  Forfeiture of $200.00 pay per month for 2 months (suspended for 6 months) and a punitive letter of reprimand.  Not appealed.

020605:	Applicant to unauthorized absence.

020607:	Applicant from unauthorized absence.

020701:	Applicant required but did not take scheduled semi-annual physical fitness test for first half of 2002.
	[Extracted from Fitness Report for period 020401 – 021011.]

020715:	Applicant to unauthorized absence.

020725:	Applicant admitted to Walter Reed Army Medical Center.
	[Extracted from Narrative Summary and Patient Discharge Instructions, dtd 020729, provided by Applicant.]

020729:	Medical entry:  Narrative Summary and Patient Discharge Instructions, Walter Reed Army Medical Center, CPT F_ W. P_ III:  
Chief complaint:  “I’m so afraid.”
Axis I:  MDD, single episode, moderate without psychotic features
Panic disorder without agoraphobia.
Axis II:  PDNOS with cluster B features
Axis III:  Hypotestosteronism, hypertension
Axis IV:  Occupational stressors, legal stressors, environmental stressors
Axis V:  GAF at admission 50, GAF at discharge 65
History of present illness:  Pt (Applicant) is a 38y/o WM AD USMC E-6 w/19.5 yrs CADS who presents to WRAMC ER on referral from his primary psychiatrist at Quantico.  The pt acute story begins with his divorce roughly one year prior.  He has had a steady downward course since that time with increasing anxiety, depressive symptoms, and increasing fear (unspecified) that led to pt having difficulty leaving the house due to overwhelming fear. The pt described his first symptoms as having no energy, no sex drive, and anhedonia.  The pt states he has tried to “beat this thing on his own,” but feels he is unable.  Endorses a significant recent history of depression without prior difficulties.  The pt feels that much of his difficulty stems from his anger at his command due to their response to his request for psychiatric help.  He has since the time of asking for help felt weak and otherwise inadequate.  His reluctance to leave the house is noticeably absent on the weekends, and worse when he has to go to work (pt unable or unwilling to make connection between the two).  Due to these symptoms he requested the eval and was seen at which point he was started on medication and during his medical eval was found to have low testosterone.  The pt was started on replacement therapy roughly two months ago.  He has not noticed any improvement during this interval.  Psych ROS:  SIGECAPS:  Sleep – difficulty initiating and maintaining sleep (usually gets a couple hours, but spends a lot of time lying awake at night thinking.  Unable to specify what he thinks about during these times.)  Interest – recent worsening of anhedonia on top of previous symptoms over past few months.  Guilt – denies.  Energy – states he has none.  Conc – terrible.  Appetite – decreased for past months.  Psychomotor – per pt, significant difficulty with psychomotor retardation over pst months.  Suicide – not current, but has had thoughts that he would and his method would be pills.  Psychotic symptoms – none.  Mania – none.  Anxiety – evidence of agoraphobia, mild anxiety outside of the agoraphobia.  Patient reports that around 1-1.5 yrs ago he began “being down a lot, having zero energy.”  Prior to current deterioration of health the patient enjoyed a healthy load of leisure activities such as fishing and hunting.  “I was 36 and had everything I wanted.”  He denied any incident, overdose, or major life event that could have changed his condition.  He began to renting 3-4 movies and staying in all day on a weekend much more than he used to. He writes for different publications in his off time 96 columns per mo., and he began struggling to come up with anything to write about, something that never happened before.  Then he began to question his example as a Marine, which he had “never done in 19 years as a Marine.”  He also lost his sex drive.  His depressive episodes became more serious and lasted longer.  He tried pulling himself together each morning to be the Marine he knew he had to be, but this only further stressed the patient.  Finally he decided to seek help about 3 months ago.  At this time he was diagnosed with Hypotestosternism and Depression, and started on testosterone and Celexa.  Within days the patient noted the return of his sex drive, but remained depressed and worried.  His psychiatrist recommended that he take two weeks to relax and collect his thoughts, but the patient met resistance (unexplained) from his unit in trying to get two weeks of leave.  The patient feels that he “never had a chance to just deal with it.”  He never got a break from talking to people at work, etc.  The patient described significant levels of stress and anxiety about many things that were hard to name specifically.  He spoke much of fear, how we are all afraid, and that he has never had any problem in the past overcoming fear, but now he did have a problem overcoming fear.  He expressed significant guilt over “pushing fearful, incapacitated Marines out of a helicopter and into a firefight.”  He admitted having nightmares about it, but denied other PTSD symptoms.  Patient’s fear and anxiety has occasionally confined him to his home.  When trying to leave for work, he would tighten up, essentially “freeze,” and have to return home.  He reported that he would be able to feel good about things by surrounding himself with his dogs and cats in his bedroom.  He reported an improvement in his mood and outlook, but a persistence of fear and anxiety.
The patient spent much time elaborating on the apparent ironies involved with his condition.  He repeatedly hinted that the Marines have not been very supportive throughout his health issue.  The patient felt “alone” and “abandoned” after he was labeled a malingerer by some at work.  He had heard the Marine mantra that no one can help you unless you ask for help for 19 years, and now that he had come forward for help with his condition, he felt that the Marines had abandoned him.  He likened himself to a machine that the Marines had built that has gone bad, and they have turned their heads from fixing it. Even so, he understands that the Marine Corps is essentially a business, and in no way feels picked on or singled out.  The patient’s obvious dissatisfaction with the way the Marines are handling his situation is seemingly compounding his current anxiety and fear.  
He endorses the inability to concentrate for very long, a decreased appetite, and drastically decreased energy.  He expressed a desire to keep his stay on the ward short.
Patient denies current SI, HI, VH, AH, delusions, and manic symptoms.
Previous Psych History:  Denies previous to recent interactions with mental health.  Describes himself as a good strong soldier until recent and would not need this, but now recognizes he does.
Course in Hospital:  Patient admitted to ward 54, inpatient psychiatry, for inpatient of depressive and anxiety symptoms refractory to outpatient treatment.  He was medically cleared in the WRAMC ED and his admission labs were stable.  He was incorporated into the ward milieu and a treatment plan was initiated.  The patient was cooperative during interviews although he did not talk about certain subjects unless questioned directly.  The patient did not present any safety or behavioral issues on the ward.  He was not suicidal during admission and was willing to contract for safety during this admission.  The patient was participative on the ward with notable improvement in affective and physical symptoms.  The patient was able to come up with an acceptable safety plan should feel that he was a danger to himself.  Patient participated in all groups while on the ward.  He was started on Paxil 20mg every day, after informed consent was obtained, for treatment of anxiety and depression symptoms.  He reported good tolerance of the medication and did not report any side effects.  He understood that the medication may take 4-6 weeks to become effective.
Patient was confronted directly on positive opioid and benzodiazepines on during drug screen.  Patient reports use of narcotics for knee pain and Lorazepam was given to him recently for anxiety.  We were unable to confirm this with the patient’s outpatient civilian provider.  Patient denies any drug abuse.  The patient’s command reports a concern for drug use and pending charge for obtaining prescription medication under a false identification but the command was not able to specify any positive USD or documented drug use at the unit when contacted. Patient reports that three years ago he was labeled a substance user by his command for increasing use of narcotics for migraine headaches.  He states that he stopped using narcotics and started using amiltriptyline with significant improvement in his symptoms. He reports occasional narcotic use per prescription for chronic knee injury resulting from a trauma.  The patient states that the recent reports of illegally obtaining prescription medications stems for identify theft and that he was not involved.  This could not be confirmed nor denied by the command.  Patient is pending NJP for UA in the context of his panic and anxiety symptoms.  The command is entertaining the possibility of separation for dereliction of duty and unauthorized absences over the last year.
The patient expressed interest in pursuing treatment in the Adult Psychiatric Partial Hospitalization Program.  He was interviewed for the program on 020729 with an anticipated start date of 020730.  Since he is from a local command, he will be discharged to home and tasked with providing his own transportation to the two week APPHP program.
MSE upon discharge:  Awake, alert, appears stated age, dressed in hospital gown with appropriate grooming.  Polite and cooperative.  Speech normal tone, rate, and volume.  Good eye contact. Mood-“good”  Affect-mood congruent.  FOT-LLGD.  TC-denies SI/HI/delusions/paranoia.  Perceptions-no AH/VH.  Cognition-intact.  Judgment and insight good – improved over admission.

020805:	Applicant admitted to Adult Psychiatric Partial Hospital Program (APPHP), Walter Reed Army Medical Center, Washington DC.
	[Extracted from Discharge Summary, dtd 020812, provided by Applicant.]

020812:	Medical entry:  APPHP Discharge Summary, J_ Y_, Social Worker; CPT M_ E_, MC, USA and LTC (illegible) W_, MC, USA:  38 year old single, divorced male USMC AD E-6 with 19.5 years AD.
	Current diagnosis:  Axis I:  Anxiety Disorder NOS (with panic attacks).  R/O depressive disorder.  History of opioid abuse, R/O substance-incurred mood disorder.
	Axis II:  Antisocial Personality Traits (Provisional)
	Axis III:  HTN, hyperprotectinemia, (illegible)
	Chief complaint:  panic episodes, depressed mood
	History of present illness:  Pt presented (transferred from inpatient) with complaints of 6 month history of declining mood, anhedonia and difficulty sleeping, decreased energy, sadness, tearfulness, decreased interest.  Positive panic attacks began about 2.5 months ago when pt. would leave for work only.  Referred to WD54 by Dr. B_ at Quantico for above symptoms.
	Treatment Issues/Problems addressed:  a.  Discharge Planning.  b.  Anxiety manifested by inadequate coping mechanisms, panic attacks, frustration and low self worth.
	Course of treatment in APPHP:  Pt was continued on (illegible) 20 mg and was set to start program on 31 July, but apparently 20 tooth pain and subsequent tooth surgery, pt did not start until 05 Aug.  During that week, the team learned of his numerous legal/military offenses for which patient was not forthcoming to include:  falsifying (opioids) prescriptions, several UAs, 2 AWOL, etc.  Pt was warned that any aberrant behavior would not be tolerated our program after which pt began to withdraw during group psychotherapy and remained in denial about h/o drug use/drug-seeking behaviors.  Pt failed to gain further insight into his anxiety d/o or h/o drug abuse while here, and was decided by team to discharge patient early.  Drug abuse screen was done on day of discharge and was negative.  Pt encouraged to decrease Amytriptyline use (and discontinue completely) to decrease (illegible) levels (as recommended by endocrinology).  By day of discharge pt’s anxiety had (illegible) had improved mildly.  Recommend cont’d outpatient f/u (psych) to build trustworthy (illegible) with patient which was difficult to establish during his short stay.
	Recommendations:  individual therapy, medication management, addictions counseling (given history), CSAAC screening.
	Referred for follow up at:  030819, 1330 GySgt B_ for screening, Quantico, VA CSACC, Bldg 3035; 030820, 1430, Dr. S_ for (illegible) Health Clinic, NNMC, Bethesda, MD; 030822, 0930, LT B_, for therapy, Quantico Outpatient Mental Health Clinic.
	[APPHP Discharge Summary provided by Applicant.]

020820:	Medical entry:  Mental Health Clinic, Naval Medical Clinic, Quantico, VA, LT K. M. B_, M.A., PSY.D., MC, USNR, Staff Psychologist:  Pt. (Applicant) no show for (illegible) therapy.  Do NOT reschedule.  Telephone conversation:  Dr. B_ spoke with Maj R_ who confirmed pt’s UA status.  Pt will be arrested upon apprehension.

020821:	Applicant from unauthorized absence.
	[Termination date extracted from NJP, dtd 020925.]

020821:	Applicant to brig.
[Extracted from Narrative Summary and Patient Discharge Instructions, dtd 020823.]

020821:	Applicant admitted to Walter Reed Army Medical Center with chest pain. 
[Extracted from Narrative Summary and Patient Discharge Instructions, dtd 020823.]

020823:	Medical entry:  Narrative Summary and Patient Discharge Instructions, Walter Reed Army Medical Center, D_ L_, PA-C:   
Chief complaint:  chest pain.
History of Present Illness:  38 y/o AD USMC with anxiety disorder and HTN with new onset of susternal chest pain/pressure that radiated to left shoulder while at rest.  Patient was in jail thinking about his future when he experienced this pain which he describes as “someone putting their knees on my chest” and “getting kicked in the chest.”  Patient describes shortness of breath and associated diphoresis but denies n/v/dizziness/lightheadedness.  Pain initially 9/10 with no initial relief or worsening of symptoms with movement or anything else.  Initial pain started at 1600 hours and last approx. 1 hour. 
Patient taken to Potomac Hospital where he was given SLNG tabs x3 with resolvement of chest pain.  Patient also administered ASA, Tylenol, and morphine 2mg x2.  Urine tox screen prior taken prior to given morphine was positive as per physician at Potomac (to Dr. T_).  Patient reports additional episode of chest pain this a.m. at 0200 hours that was relieved after receiving ativan but patient reports the pain took longer to subside.
Patient is now pain free and denies n/v/diaphoresis/dyspnea/air hunger/chest pain/discomfort.  Reports very good exercise tolerance and appears fit, patient states he feels like he could walk on a treadmill.  Patient reports increase in exercise tolerance with the testosterone shots he has been receiving since his last admission.
Patient with recent admission to Ward 54 where he was diagnosed with anxiety disorder.  Patient recently enrolled in WRAMC partial program but, by patient’s report, it was decided that it was not doing much for him.
Course in Hospital:  Pt was admitted for further CP evaluation.  A third set of EZ’s were negative at WRAMC.  On the AM of admission to WD 41, Pt had an episode of severe 10/10 chest squeezing associated with hyperventilation, diaphoresis.  Pt was given SLN x 3 without relief, was subsequently given IV morphine and IV ativan with eventual relief of acute symptoms.  ABG during this episode was C/W with hyperventilation (high PH, low CO2, High 02, 02 SAT 100%).  12Lead showed possible mild ST elevation in leads V2 and V3.  Given Pt’s H/O HTN, HLD and FH of CAD, Pt was taken to the Cath Lab.  Cath showed no obstructive CAD, as described above.   Pt was seen by PCLS, who concurred that his symptoms were secondary to Panic Disorder.  Their recommendation was for reinitiation of Paxil with outpt f/u next week at Quantico.
On Friday 8/23 Pt was without free of recurrence of his panic related symptoms until approx 11:30 am.  He then developed his typical anxiety symptoms which elevated into a panic attack of approx 30 minutes in duration.  At it’s peak, the Pt c/o’s of symptoms of SOB and chest squeezing.  The Pt appeared diaphoretic and in general distress.  02 SAT was 100% on RA, lungs were clear.  Rhythm was sinus.  A paper bag was applied to his mouth/nose which he breathed in and out of for approx 10 minutes.  With this, his acute symptoms subsided.  Pt cont’d to c/o of moderate general anxiety and was given 1 mg of IV ativan with resolution of symptoms.  Pt later cont’d to be free of symptoms, other than mild low back pain (duration of several days).  Vital signs were stable and exam was benign.  Cath groin site was without hematoma or bruise.  On day of d/c, Pt was seen once again by psych (Dr. O_) who concurred with d/c plans and suggested initiation of Klonopin.
Clinic Follow Up:  1.  Follow up with Mental Health Clinic at Quantico early next week.  You should walk in or call to make an appointment asap.  They will need to refill your medication (Paxil).
2.  You will need to follow up with your primary doctor in 6 weeks to check liver function blood tests with regard to your cholesterol medication.
3.  Call Dr. O_ early next week to arrange discuss follow up visits with him.  His number is (omitted).

020823:	Applicant returned to confinement.

0208xx:	Medical entry:  Mental Health Clinic, Naval Medical Clinic, Quantico, VA, LT A. B. B_, MSC, USNR, Staff Psychologist:  Telephone conversation with Gy F_ from CSACC.  Gy F_ called to discuss pt. diagnosis and recommended treatment.  Provider stated if pt. is to receive any form of treatment it should be inpt. for substance dependence.  Provider will fax over pertinent documentation to CSACC and steps will be taken from there.  Pt currently in the Brig; per consulting with his CO (Maj R_) SCM most likely won’t take place until Jan 03.

020920:	Applicant released from confinement to duty.

020925:	NJP for violation of UCMJ, Article 86:  Unauthorized Absence.
Specification: Was, between 0730, 020605, and 1630, 020607, UA from his appt place of duty.
Violation of UCMJ Article 86: Unauthorized absence.
Specification:  Was, between 0730, 020715 and 0945, 020821, UA from appt place of duty.
	Award:  Forfeiture of $1301.00 pay per month for 2 months, letter of reprimand, and an oral admonition.  Not appealed.

021001:	Applicant required but did not fire the M9 service pistol for qualification during fiscal year 2002.
	[Extracted from Fitness Report for period 020401 – 021011.]

021002:	Applicant in hands of civilian authorities (NFI) due to felony civil conviction with maximum sentence of nine months in jail.
	[Extracted from Fitness Report for period 020401 – 021011.]

021007:	Circuit Court of Stafford County orders Applicant held without bail with hearing scheduled for 021211.

021226:	Applicant from hands of civilian authorities on bond pending appeal.
	[Extracted from Fitness Report for period 021012 – 030603.]

021227:	Applicant to unauthorized absence.

030106:	Applicant from unauthorized absence.

030107:	Applicant scheduled for CSACC assessment at 1330 this date.  Declines CSACC assessment due to “legal advice and pending case.”  Indicates being “open to assessment once case is closed.”

030107:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, drug abuse and commission of a serious offense.  The factual basis for this recommendation was prescription drug fraud committed on three occasions during current enlistment.  Furthermore, during current enlistment Applicant received four page 11 entries and two NJP’s.  Applicant informed the least favorable character of service possible was under other than honorable conditions.  Applicant also advised that, if separated with an other than honorable characterization, he will be administratively reduced to pay grade E-3.

030107:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
	[Extracted from Acknowledgement of Rights, dtd 030107, provided by Applicant.]

030107:	Commanding Officer, Headquarters Company, Headquarters and Service Battalion, Marine Corps Base Quantico, recommended to Commandant of the Marine Corps that the Applicant be separated with an under other than honorable discharge by reasons of misconduct due to pattern of misconduct, drug abuse, and commission of a serious offense.  Commanding Officer’s comments:  The factual basis for this recommendation is prescription drug fraud committed by Staff Sergeant V_ (Applicant) on three occasions during current enlistment.  Furthermore, during his current enlistment he received four page 11 entries, and two Non-Judicial Punishments; such behavior is clearly prejudicial to good order and discipline within the United States Marine Corps.  Additionally, Staff Sergeant V_ (Applicant) has misled and deceived the members of his chain of command, and by his own personal example, caused irreparable damage to the special trust and confidence enjoyed by Marines of his rank.  By all medical accounts, he has been in the throes of substance addiction, and has been unresponsive to treatment options afforded him, culminating in the refusal of local mental health experts to treat him any further due to his continued dishonesty.  His focus for the better part of this enlistment seems to have been spent on willfully manipulating the system and the sympathies of those around him to minimize his professional responsibility and maximize his freedom to pursue his own designs.  His conduct as a Marine has been substandard at best, and his service history is pockmarked by accounts of negligence and deviance.  He has wasted hundreds of man-hours, consciously betrayed all those who supported him, and brought shame and discredit to the Marine Corps.  By his actions, he has demonstrated that he has no potential for further military service.  

030115:	Applicant to unauthorized absence since 0730.
	[Extracted from Report of Return of Absentee, dtd 030225.]

030128:	Handwritten ltr from T_ L. B_, MD, Staff Psychiatrist, Walter Reed Army Medical Center:  “To Whom It May Concern:  N_ V_ (Applicant) was seen in my office today at 2:00 pm for psychiatric treatment.  He is scheduled for a follow-up appointment on Feb. 3rd at 2:00 pm.
	Sincerely, (signed).
	[Provided by Applicant.]

030219:	Applicant from unauthorized absence at 1200 (surrendered at Walter Reed Army Medical Center/36 days).

030304:	Memorandum for Major R_, from CPT A_ J_ D.O., MC, USA, Psychiatry Resident, and LT P_ C_, D.O. MC, USNR, Psychiatrist, Walter Reed Army Medical Center:  Subject:  Recommendations to Command regarding N_ V_ (Applicant) SSN (omitted).
	The above named service member has been hospitalized at Walter Reed Army Medial Center Inpatient Psychiatry from 030219 until present.  He displays symptoms consistent with the diagnosis of Post Traumatic Stress Disorder (PTSD) and a medical board is indicated at this time.  If he is discharged to command his chances of recovering are low with a significant risk for suicide.  He has exhibited signs of agoraphobia (fear of leaving his home) in the past year which is related to this medical condition.  It is recommended that command withdraw any charges pending regarding his deserter/UA status in the past year.  His treating psychiatrists believe that his illness has contributed to his behavior and hope to pursue separation through medical channels.
	It is also recommended that this service member be reassigned to the medical holding company at National Naval Medical Center as he awaits a medical board.
	Thank you for your attention in this matter.  If you have any questions, please call me directly at (telephone number omitted).

030019:	Memorandum for the Commander, Attn: Major R_, HQSVC BN, Quantico, VA, from COL T_ N_, MD, MC, USA, Chief, Inpatient Psychiatry; CPT A_ J_ D.O., MC, USA, Psychiatry Resident; and LT P_ C_, D.O. MC, USNR, Psychiatrist, Walter Reed Army Medical Center:  Subject:  Psychiatric Recommendations to Command regarding Staff Sergeant N_ V_ (Applicant) SSN (omitted).
	The above named Service member has been hospitalized at Walter Reed Army Medial Center Inpatient Psychiatry from 030219 until present.  Patient has continued to display symptoms consistent with the following diagnoses:  Post Traumatic Stress Disorder, Delayed Onset; Major Depressive Disorder, Recurrent, Moderate; Panic Disorder with Agoraphobia.
	The medical board opinions above conditions are medically unacceptable and warrants disposition through medical channels.  The medical board advises the Command to consider disposition through medical channels.
	However, the medical board is aware of many of his alleged misconduct.  His condition however does not totally exculpate his alleged misconduct.  Rather, the medical board opinions his alleged misconduct was significantly influenced by his partially recognized psychiatric illnesses impacting on his recent substandard performance of his duty expected of his rank and experience.  Until recently, this Marine’s performance of his duty appears to have been nothing short of the highest of the standard set by the USMC.
	Currently, the patient is not imminently suicidal and can be discharged from the inpatient psychiatry unit for continued outpatient psychiatric care.  Due to a high lifetime risk for suicide and persistent and recurrent nature of conditions identified in sentence 1 above, a careful psychiatric management and observation of this soldier is deemed necessary.  Therefore, the Command is requested to support this soldier in receiving continued psychiatric treatment whatever the final action the Command decides to pursue.
	If the Command decides to relinquished/resolve charges, please contact the undersigned so that a medical board forwarded to the physical evaluation board (PEB).  If this were the case, we feel that it would reassign SSGT V_ to Medical Holding Company at NNMC. 
	As we serve as the medical advisor to the Command, your questions and clarifications can be obtained by calling me directly at (telephone number omitted).

030320:	Medical entry (partial, 3 of 7 pages):  Narrative Summary and Patient Discharge Instructions, Walter Reed Army Medical Center, Dr. A_ J_:  Patient admitted to inpatient psychiatry after suicide attempt.  During patients hospitalization he became more interactive in the ward, slowly showing progress with depressive symptoms of poor sleep, improved hopeless feelings, improved concentration and energy.  Patient upon admission exhibited symptoms consistant with PTSD, MDD, recurrent, and panic attach with agoraphobia.  He initially endorsed depressed mood, poor sleep wiht nightmares, emotional numbing, increased arousal and hypervigilence, agoraphobia (fears of leaving his house) suicidal, tearful, avoidence of discussing past events and experiencing a range of emotions related to the past tramatic events.  Due to his symptoms he was increased on his Paxil and Klonapin.  For diagnostic clarification, psychology was consulted for psychological testing.  The psychological testing was consistant with the a duel diagnosis of PTSD and Panic Disorder with agoraphobia.  Due to the concerns regarding an unclear presentation from command and previous providers collateral information was obtained from Quantico mental health, WRAMC APPHP and previous providers.  After evaluating all of the collateral the patients presentation was still consistant with the inital diagnosis.  It was recommended to command to drop deserter status of the patient in order to initiate an MEB could be initated to disposition patient through medical channels (this was done in memo form and sent to Maj R_).  A second memo with the same recommendations was sent to Major R_ prior to his discharge.
Due to patients positive urine drug screen (see labs) and previous diagnosis of Polysubstance abuse (unknown substances), patient was questioned regarding substance use or dependency – he continued to deny such use.  It is determined if this diagnosis exists or does not, it does not change the symptoms consistant with depression, PTSD or panic attack with agoraphobia and a MEB is still indicated.  During hosptialization, patient did not exhibit signs or symptoms of withdrawl.
MSE (upon discharge):
Appearance and Attitude:  Pt is maintaining military standards and dressed in USMC sweats/BDU’s.  His attitude is guarded and anxious.  
Motor activity:  Signs of agitation; pt. also reports numbness in his fingers b/l.
Speech:  Regular Rhythm/volume/quantity/articulation/spontaneity
Mood and Affect:  Pt. stated he feels “anxious;” his affect is worried and anxious.
Thought Process:  Logical/goal oriented
Thought Content:  No signs of delusions/paranoia/preoccupations/
Obsessions
Perception:  No signs of hallucinations/illusions/depersonalization/
Derealization
Cognitive Functions:  Alert and oriented
Intellectual Functioning:  Good
Judgment/Insight:  Fair
Impulse Control:  Fair.
Clinic Follow Up:  NNMC Mental Health, 030324, 1300, Dr. D_ (telephone number omitted).

030320:	Applicant arrested by Stafford County Sheriff for bond violation and ordered to carry out remainder of nine month sentence.
	[Extracted from Commanding Officer, Headquarters and Service Battalion endorsement dtd 030523 and Fitness Report for period 021012 – 030603.]

030414:	Civil Conviction, Circuit Court of the City of Fredericksburg.
Applicant convicted (pled guilty) of felony prescription fraud.
Sentence:  Confinement for 3 years (2 years and 11 months suspended on following conditions:  Good behavior for five (5) years upon release from confinement; supervised probation for an indefinite period; pay costs of $553.00 by 030616), suspension of privilege to drive or operate a motor vehicle for 6 months.  Sentence entered 030505.
	
030523:	Commanding Officer, Headquarters and Service Battalion, recommended to the Commandant of the Marine Corps that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to drug abuse and misconduct due to commission of a serious offense.  “This administrative discharge package was originally forwarded on 030107, but was pulled back to the battalion on 030115, when Staff Sergeant V_ (Applicant) went into an unauthorized absence status.  On 030219, Staff Sergeant V_ returned to military control by turning himself in to Walter Reed Army Hospital where he was subsequently admitted for evaluation for an alleged suicide attempt.  Upon discharge from the hospital on 030320, Staff Sergeant V_ was escorted to the Stafford County Sheriff’s Office where he was arrested on a warrant for failure to appear.  On 030415, Staff Sergeant V_ was convicted of prescription drug fraud and given a 36 month sentence.
Based on Staff Sergeant V_’s repeated and willful disobedience, multiple civilian convictions, and an apparent drug problem it is quite obvious that he has no potential for further service.  He has shown that he is not willing to conduct himself in professional manner that reflects honor, courage and commitment.  In my 26 years of service and experience in military law enforcement, I have never seen such blatant disregard for military authority, personal accountability and professional obligations by a staff non-commissioned officer.  Therefore, I recommend that Staff Sergeant V_ receive an other than honorable conditions discharge.” 

030912:	Applicant released from Rappahannock Regional Jail.
	[Extracted from A_ D. A_, Probation/Parole Officer ltr dtd 031007.]

030912:	Applicant to unauthorized absence at 1200.
	[Extracted from DD 553, Deserter/Absentee Wanted by the Armed Forces, dtd 031014.]

031007:	Ltr from A_ D. A_, Probation/Parole Officer to Major S_ S_, Headquarters Service Battalion, RE: N_ V_ Jr. (Applicant):
	“I am currently supervising the above named individual for his conviction of Prescription Fraud in the Fredericksburg Circuit Court on 030414.  On that date he was sentenced to a period of three years confinement in the Virginia Department of Corrections penal system with two years and eleven months suspended upon the conditions of five years good behavior, indefinite supervised probation, pay costs, and operator’s license is suspended for six months.
	I first met with Mr. V_ (Applicant) on 030804 at the Rappahannock Regional Jail.  I reviewed his probation conditions with him and we both signed these conditions. I instructed him to report to my office upon his release from incarceration.  He informed me that he was residing in Dale City, which is not in our supervising district.  I again instructed him to report to my office upon his release to fill out his initial paperwork and that his case would have to be transferred to the district in which he resides, District 35.  He was released from jail on 030912 and called my office on 030913.  Mr. V_ (Applicant) left a message on my voice mail stating he had been released and was checking in with me.  I called N_ (Applicant) on Monday, 030915 and set an initial appointment for 030917 at 3:00 p.m.  On 030917 Mr. V_ (Applicant) called me and stated he could not make his appointment due to transportation problems.  I rescheduled his appointment for 030924.
	On 030924 Mr. V_ (Applicant) did report as instructed.  I called Staff Sergeant T_ on this day and let the subject speak directly with Staff Sergeant T_.  I instructed the subject to report to his command post in person by 5:00 p.m. on this day.  D_ W_, retired Marine Corps. Captain, who is a probation officer here at our office, also told subject he needed to report in person to his command post.  He assured me that he would report.  Also, on this day he submitted a urine screen that was positive for Morphine and Benzodiazepines.  He told me that he was currently taking prescriptions Endocet and Clonapem.  I instructed him to mail or fax to me documentation for these prescriptions.  I also instructed him to mail in monthly report forms to me at the end of September and October because his case would be transferred to Manassas, District 35, and it takes forty-five days for the transfers to be completed.
	On 030925 the subject called at 4:30 a.m. and left a message on my voice mail that he was on his way to the Marine Corps.  On 030926 Mr. V_ (Applicant) sent paperwork indicating that he had a current prescription for Hydrocodone and discharge paperwork from Walter Reed where he was prescribed Clonazepam on 030219.  The current prescription for Hydrocodone would explain his positive screen for morphine, but the paperwork from Walter Reed indicates a prescription from 2/03 and would not be excusable for his positive screen for Benzodiazepines.
	I have sent Mr. V_ (Applicant) a letter today instructing him to report in person to me on 031014.
	Please feel free to contact me if I can be of further assistance.
	Sincerely, (signed)

031009:	Applicant submits, via unknown means, a written waiver of administrative board to Commander, Marine Corps Base Quantico, and indicates intent to submit written matters in rebuttal to administrative separation recommendation by 031016.

031014:	DD 553, Deserter/Absentee Wanted by the Armed Forces issued this date for unauthorized absence commencing 030912.

031015:	Applicant counsel, Captain J_ P. S_, USMC, submits rebuttal to proposed administrative separation requesting Applicant be processed for separation via Physical Evaluation Board on equity grounds.  Counsel comments:  As reflected in enclosure (1), the majority of Staff Sergeant V_ (Applicant)’s career has been served with infantry units as an 0351 Antitankman, 0311 Rifleman or 0369 Infantry Unit leader.  Enclosure (3) memorializes both SSgt V_’s combat history and the personal awards he earned during the course of his career.  On numerous occasions SSgt V_ has gone into harm’s way in the service of his country.  In the process, Staff Sergeant V_ witnessed numerous acts of extreme violence including the murder of several foreign nationals who were doused with gasoline and then set on fire.
In November of 1989, SSgt V_ sought assistance from Mental Health at Camp LeJeune.  This visit marks the beginning of a 14-year long deterioration in SSgt V_’s psychiatric wellbeing.  (Enclosure 4.)  This deterioration culminated in March of 2003 with a final diagnosis of Post Traumatic Stress Disorder, Major Depressive Disorder and Panic Disorder with Agoraphobia.  (Enclosure 5 and 6.)
It is significant that this diagnosis was reached by a medical board after a period of inpatient treatment, psychological testing and after considering the contrary indications of manipulation and deception contained in enclosure (4), and noted in reference (b).  (Enclosure 5.)  In relevant part enclosure (5) states, “For diagnostic clarification, psychology was consulted for psychological testing.  The psychological testing was consistent with the duel diagnosis of PTSD and Panic Disorder with agoraphobia.  Due to the concerns regarding an unclear presentation from command and previous providers, collateral information was obtained from Quantico mental health, WRAMP APPHP and previous providers.  After evaluating all of the collateral the patient’s presentation was still consistent with the initial diagnosis.”  In determining what weight should be given to the command’s recommendations for separation in reference (b) and (c), it is important to note that this information is not addressed, referenced or enclosed.
Based on this diagnosis a medical evaluation board at Walter Reed Army Medical Center opined that SSgt V_’s medical condition was unacceptable and warranted disposition through medical channels and advised the command to consider disposition through medical channels as opposed to administrative or disciplinary channels.  This recommendation was based in part on the boards finding that SSgt V_’s misconduct, though not exculpated by his mental illness, was significantly influenced by that illness (Enclosure 6.)
Options.  The options in this case are:  (1) Administrative separation with either an Honorable, General (under honorable conditions) or Other than Honorable characterization of service; (2) Suspended separation for up to 12 months with an Honorable, General (under honorable conditions) or Other than Honorable characterization of service; (3) Retention; or, (4) Retention followed by separation in accordance e with Chapter 8 of reference (a).
A medical board determined that Staff Sergeant V_’s PTSD and Panic Disorder with Agraphobia significantly influenced the misconduct that forms the basis for his proposed separation.  These mental illnesses are attributable to honorable and faithful combat service prior to the misconduct that forms the basis for the proposed separation.  Though psychological, Staff Sergeant V_’s mental illness is just as palpable as the physical injuries suffered by other Marines in combat.  SSgt V_’s associated substandard performance is analogous to the decrease in performance often experienced by Marines suffering a physical injury.  A distinguishing feature of our Corps’ service culture is an ethos often expressed with the words Semper Fidelis.  Simply stated, as Marines we do not leave our wounded behind.  The proposed administrative separation of SSgt V_ for misconduct that was significantly influenced by combat-related psychological disorders incurred in the service of our Country is inconsistent with this ethos.  Accordingly, the defense respectfully requests that SSgt V_ not be administrative separated and that consideration be given to ordering a Physical Evaluation Board in accordance with Chapter 8 of reference (a). 

031103:	Commanding Officer, Headquarters Company, Headquarters and Service Battalion, submits memorandum commenting on Applicant’s rebuttal.  Commanding Officer’s comments:  When this command notified Staff Sergeant V_ (Applicant) of its intent to separate him for a pattern of misconduct on 030107, he elected to have an Administrative Separation Board hearing.  As of the date of this letter, Staff Sergeant V_ has been in either a deserter status or in Hands of Civilian Authorities (IHCA).  Staff Sergeant V_ was released from IHCA on 030912 and subsequently entered into an unauthorized absence status.  His board hearing was scheduled for 031009 and prior to convening this board he reversed his decision and waived his right to a board.  Through counsel, Staff Sergeant V_ submitted matters in rebuttal that were not in existence at the time he was served the notification to separate.  Staff Sergeant V_ entered into his third period as a deserter status on 031013 and a NAVMC 503 was submitted to local authorities.
	His early career and combat history both show he was a productive, and by all accounts, the type of Marine any unit would want to have in its ranks.  However, for reason’s not fully justified, Staff Sergeant V_’s performance began to deteriorate.  In his rebuttal, it is suggested that the decline began 14 years ago after witnessing disturbing scenes while in combat, yet his first documented derogatory entry is a non-judicial punishment for unauthorized absence and writing bad checks that occurred in 1995, two years after his last combat expedition in Guantanamo Bay, Cuba, and 11 years after his experiences in Beirut, Lebanon.  The notion that Staff Sergeant V_ may be suffering emotional and/or psychological trauma from these episodes is potentially valid but there are inconsistencies that do not support his claim.
	However, it is his pattern of misconduct during his current enlistment that is the real issue for the decision to separate this marine.  Staff Sergeant V_’s record speaks for itself; substandard performance, multiple unauthorized absences, three periods of desertion, four Page 11 counseling entries and two non-judicial punishments, as well as two civilian felony drug convictions during this enlistment.
	While seeking medical attention, Staff Sergeant V_ has been documented as being manipulative and presenting drug seeking behavior.  This shows a willful and calculated attempt on his part to satisfy his own personal desires and to receive sympathy from medical providers and his command in order to minimize his infractions and deflect suspicions of wrongdoing.  Enclosures in his rebuttal and in the administrative separation package clearly show his willingness to leave out specific information to medical providers so they may reach a conclusion that is favorable to his desires.  This same behavior has been documented by his chain of command in the form of counseling ant statements made by his supervisors.  He has lied to his Marines, peers, and superiors in order to gain their sympathy or to mask the truth; his performance is substandard at best even though his job description and responsibilities has been steadily reduced in order to compensate for his incompetence and his unwillingness to perform even the bare minimum of acceptable performance.  The example Staff Sergeant V_ has set for the Marines in this command has been shameful and a disgrace. 
	Staff Sergeant V_ cannot use his one sided diagnoses, his combat history, or any other excuse to exculpate him from his misconduct.  The connection is simply not there.  He is solely responsible for his own misconduct.

031124:	Commander, Marine Corps Base Quantico, recommended to the Commandant of the Marine Corps (M&RA) that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, drug abuse, and commission of a serious offense.

031230:	Commandant of the Marine Corps (M&RA) approved recommendation that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, drug abuse and commission of a serious offense and directed that the Applicant be discharged on 031231 with a characterization of service as under other than honorable conditions and a separation code of HKK1 [drug abuse (board waived)].

031231:	Applicant’s end of active service (EAS) this date.
	[Extracted from MCTFS Basic Individual Record page 1, dtd 031113, provided by Applicant.]

031231:	DD 214:  Applicant discharged this date.

Service Record Book contains a partial Administrative Discharge package. 
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031231 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B and C).  

The Applicant contends that his discharge was improper because he had no knowledge of, nor opportunity to respond to, the “hearsay” “allegations” contained in a “scathing” memorandum submitted to the Separation Authority by his immediate Commanding Officer, Major S_, after the Applicant had submitted his rebuttal statement to the proposed separation, “contrary to regulations and the dictates of due process.”  The Applicant did not indicate what specific regulation or process was violated; rather, he claims that lack of opportunity to “rebut or address the information contained in the memorandum….depriv[ed] him of a fair hearing on the allegations contained in the memorandum.”  Neither did the Applicant did specify what in the memorandum he considered to be “new ‘information’,” nor did he specify what, if anything, in the memorandum was factually incorrect; however, the Board carefully examined the memorandum for possible procedural and substantive prejudice and found none.  Relief denied. 

The Applicant was convicted by civil authorities in 2 separate jurisdictions of 3 violations of attempting to obtain Schedule III and Schedule IV controlled substances via fraudulent prescriptions.  Under applicable regulations, such behavior constitutes misconduct due to drug abuse, for which mandatory processing for administrative discharge is required.  The Applicant was properly notified of the proposed recommendation for separation on the grounds of misconduct due to drug abuse.  In addition, the Applicant was processed for misconduct due to a pattern of misconduct and due to commission of a serious offense.  The Separation Authority ultimately directed Applicant’s discharge on the basis of misconduct due to drug abuse.  The Board found that the evidence record clearly demonstrated that the Applicant did commit the misconduct for which he was discharged, and that all three of the bases for which he was processed were supported by the evidence.  The Board determined that the factual basis for the proposed separation was clearly reflected in the record, that the Applicant was properly notified of the factual basis for the proposed separation and his rights in response, had more than ample opportunity to respond to it, and that the Applicant did so in a thorough and clear manner.  The record also demonstrates that the Applicant’s rebuttal and supporting evidence were presented to the Separation Authority for his consideration.  While the better practice would have been to ensure that the Applicant was provided a copy of Major S_’ letter, the Board was not convinced that the letter contained any significant “new” adverse information.  Rather, the Board viewed the letter as primarily reflecting Major S_’s assessment of the Applicant’s rebuttal argument.  Further, to the extent that the letter could be construed to contain new information, there is no evidence to suggest that the Separation Authority failed to make an independent assessment of the merits of the Applicant’s rebuttal evidence and arguments.  Relief on propriety grounds is denied.  

The Applicant did not explicitly raise equity as in issue in his application to the Board; however, the Board did review the Applicant’s discharge on equity grounds.  In his rebuttal to the proposed separation, the Applicant did not deny having committed the misconduct; rather, he requested separation for medical reasons via the Physical Evaluation Board (PEB) on equity grounds, citing his previous service and arguing that his psychological diagnoses stemmed from his experiences during that service.  For the Applicant’s edification, DoD disability regulations do not preclude a disciplinary separation.  SECNAVINST 1850.4E stipulates that separations for misconduct take precedence over potential separations for other reasons.  The Board found no evidence that the Applicant’s command acted improperly or abused its discretion in pursuing administrative separation vice PEB proceedings.  During the period of service under review, the Applicant’s service was marred by assignment to weight control, failure to take the required physical fitness test, failure to qualify as required with the service rifle and pistol, 4 retention warnings, 2 nonjudicial punishment proceedings for violations of Article 86 of the UCMJ, and 2 civil convictions for attempting to obtain controlled medicines via fraudulent prescriptions.  Analogous offenses under the Uniform Code of Military Justice are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general court-martial.  The Applicant’s conduct during this period of service, 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 on equity grounds.
   
The Board noted that the Applicant’s administrative separation occurred after the date of the end of active service (EAS) established upon his re-enlistment for the period of service under review.  A Marine may not normally be held past his EAS solely for the purpose of involuntary administrative separation proceedings.  An EAS may be extended, however, to account for “lost time” when a Marine is in an unauthorized absence or serving a term of confinement.  In the Applicant’s case, his DD 214 indicates 374 days of lost time, which would not be sufficient to extend his EAS from its original date of 20020808 to his actual date of discharge on 20031231.  The Board was unable to identify all the specific periods of the Applicant’s lost time from the evidence in the service record; however, the Board did note that the Applicant’s Basic Individual Record in the Marine Corps Total Force System (MCTFS) reflected an EAS of 20031231 and that the Applicant was in an administrative deserter status at the time of discharge.  Furthermore, the Applicant did not raise his EAS as an issue in his petition.  Therefore, the Board presumed regularity in the MCTFS data entries and concluded that the Applicant was discharged within EAS and not entitled to relief on that basis.

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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