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USMC | DRB | 2009_Marine | MD0900076
Original file (MD0900076.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081015
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     20020618 - 20020701     Active:  

Period of Service Under Review:
Date of Enlistment: 20020702     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060324      H ighest Rank:
Length of Service : Y ea rs M on ths 17 D a ys
Education Level:        AFQT: 38
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (Iraq) (3) (Iraq) ICM
Periods of UA / CONF :

NJP:
- 20050419 : Article 86 (UA 2130-2205, 20050410 )
Article 92 (Fail to obey an order or regulation by consuming alcohol).
Awarded: Suspended:

- 200 5 0527 : Article 92 (Operating a motor vehicle while on Battalion High Liberty Risk)
Article 1 34 ( Caught wearing earrings in his ears)
Awarded : Susp ended:

SCM:

- 200 5 0629 : Art icle 86 (Failed to go to place of duty)
Article 91 (Disrespect to an officer and staff noncommissioned officer)
 Article 92 (Disobeyed restriction orders and order from OOD) 2 specifications
 Article 112 (Drunk on duty)
 Article 134 (Broke restriction)
 Sentence : (20050629-20050722 ( 33 days ))

SPCM: CC:

Retention Warning Counseling :

- 20050525 : For unauthorized absence and disobeying a lawful order.




Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / Medical Record: Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:         From Representat ion :   From Congress member :

Other Documentation :

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ : Article s 91, Article 92 and Article 112 .



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

Applicant’s Issues

 1. Service benefits.
2. Record of s ervice.
3. Medication led to misconduct.
4. Post-Traumatic Stress Disorder ( PTSD ) diagnosis mitigates misconduct.

Decision

Date: 20 0 9 0205            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding this Issue.
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was marred by one retention warning, two NJPs, and one SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA and f ailure to go to appointed place of duty); Article 91 (Disrespect toward a superior noncommissioned officer); Article 92 (Disobeying a lawful order); Article 112 (Drunk on duty); and Article 134 (Breaking restriction). Violations for Article 91, Article 92 or Article 112 are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. The command did not refer the Applicant for a punitive discharge but did conduct a SCM. The Applicant was subsequently processed for an administrative discharge. The NDRB determined the awarded discharge characterization was appropriate and an upgrade founded upon the Applicant’s record of service would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because the medication he was on led to his misconduct. The NDRB determined the record of evidence does not support the Applicant’s contention. Although the record does show he was prescribed various medicines, the record does not indicate any of the medications rendered the Applicant not responsible for his actions nor did a medical doctor determine the Applicant was not responsible for his actions based on medications he had been taking . The NDRB determined an upgrade would be inappropriate.

: ( ) . The Applicant contends he is enti tled to a discharge upgrade because his misconduct was mitigated by service related PTSD. The NDRB rejects the Applicant’s contention based on several factors. For clarity, these factors will be addressed individually below:

1. The record of evidence clearly shows the Applicant did not properly disclose his medical history upon enlistm ent . The Applicant completed a pre-enlistment physical and medical history screening on 25-26 April 2002 , at the age of 21. During this process the Applicant denied any history of head injury, periods of unconsciousness, depression or excessive worry, receiving counseling of any type, or receiving treatment for any non-minor illness in the previous five years. The record of evidence directly contradicts the Applicant’s statements and shows the Applicant suffered from similar symptoms prior to entering the service. Furthermore, the Applicant’s pre-service symptoms are very similar to his in service symptoms wh ich he contends are due to PTSD:

- The record shows the Applicant was seeing the Doctor because of panic attacks in Iraq. O n 16 February 2005 the Applicant reported to the D octor at the U . S . Embassy in Iraq he had been treated for “panic attac ks and depression since age 18 y ea rs . He was treated with Xanax and Z oloft over two years.”

- On 24 March 2005 the Applicant reported to the D octor at the Bay Pines VA Hospital , “At age 20 he was feeling depressed…over family problems and went to see a psychiatrist in Tampa, FL. ” He also reported receiving treatment for anxiety while visiting his family in Italy in 2001 or 2002. Medications the Applicant admitted to using include X anax, Zoloft, P axil, C elexa, Ritalin, and S etraline.

- On 24 March 2005 the Applicant also reported to the D octor he briefly lost consciousness in 1996 after being hit in the head with a hockey puck, and was unconscious for a couple of minutes after falling and hitting his head while drinking.

2. The Applicant did not fully disclose his substance abuse history as required upon enlistment. The Applicant required two waivers for illegal drug use before he was allowed to enlist. One waiver was for the admitted use of marijuana; the other waiver was for an unspecified positive result on a drug/alcohol test. Statements made by the Applicant during treatment directly conflict with his statements made upon enlisting.

         - On 23 March 2005 the Applicant reported to the VA experimenting with drugs not admitted to upon enlistment, specifically cocaine and ecstasy. Furthermore, the Applicant admitted to the use of marijuana while home on leave in direct violation of the Marine Corps’ policy on drug use and the Uniform Code of Military Justice.
3 . The Applicant was thoroughly evaluated by military medical personnel and was never diagnosed with PTSD. P ertinent entries in the Applicant’s medical record are summarized below:

          - The Applicant was seen by the D octor at the U . S . Embassy in Iraq on six occasions between 16 February and 2 March 2005. The D octor initially diagnosed the Applicant with Panic Disorder and Depressive Disorder. The D octor summari zed the Applicant’s case in a note to the Applicant’s command dated 9 March 2005 as follows:

         “…He was returned to full duty as of 25 FEB 05 . His reaction time, sustained ability to concentrate, memory both
intermediate and delayed, visuospatial skills were tested using a Walter Reed Army Med CTR research battery.. His
testing did not show any impairment. His prognosis is good. He will need continued out patient follow up at Camp Lejeune medical facility upon redeployment and home leave…”

 - The Applicant was seen on 5 April 2005 by the Division Psychologist after returning to Camp Lejeune. The visit is summarized as follows:
“Patient currently not motivated for treatment and desires only to be discharged from the United States Marine Corps. My recommendation is to do psychological testing and conduct medication consult with a psychiatrist…”
         - The Applicant was evaluated and diagnosed by the D octor on 24 May 2005 with Personality Disorder, De pression, and Anxiety Disorder. The NDRB notes the diagnosis does not show the Applicant was determined to be not responsible for his actions. The D octor discussed the Medical Board process with the Applicant, as well as the Administrative Separation process. The Applicant elected to pursue an administrative separation based upon the extended time required to complete the Medical Board process.

The NDRB notes the Administrative Separation process due to personality disorder was never completed due to the Applicant’s misconduct. For the edification of the Applicant, his misconduct would have also susp ended the Medical Board process. The Applicant is directed to the Addendum , specifically the paragraph concerning , for more information regarding this policy .
4 . The Applicant did not report combat stress as the cause of his anxiety attacks to military doctors .

         - On 10 May 2003 the Applicant completed a Post-Deployment Health Assessment (PDHA) following his first deployment and reported he did not see wounded or dead during the deployment, was not engaged in direct combat with the


e nemy , was not in fear of being killed, and did not wish to receive help for stress, emotional, or family problems. The Applicant was referred only for dental care following his return.
         - The Applicant reported to the D octor at the U . S . Embassy in Iraq on 16 February 2005 his stressors were related to family issues.

         - On 9 Marc h 2005 the Applicant completed a PDHA after his second deployment and reported he did not see wounded or dead during the deployment, was not engaged in direct combat, but had been in fear of being killed. He reported panic and anxiety and was referred to mental health for treatment. The Applicant also reported that recent family issues were involved in his problems to the doctor performing this screening.

         - On 17 March 2005 the Applicant was screened by Division Psychiatry upon return to Camp Lejeune. The Applicant agreed to return for evaluation on 5 April 2005 after taking leave. The Applicant again cites family problems as the cause for his problems.
         - On 23 March 2005 during his intake sessions with the VA , the Applicant reported he took prescribed medication to help him deal with stress due to his breakup with his girlfriend.
5. Evidence from the Applicant’s command disputes the Applicant’s contention of panic attacks induced by PTSD. On 5 April 2005 a Doctor reviewed the Applicant’s case, met with the Applicant, and spoke with the Applicant’s command. His entry in the Applicant’s chronological record of medical care dated 5 April 2005 is summarized below:

         Interviewed Dr. L. and patient’s company commander. Patient was not involved in combat during tour. That would
account for anxiety. Patient’s actions in Iraq were opportune seizures/panic attacks. Patient was observed and it was
initially thought he was having seizures. However after psychiatric evaluation patient returned and appeared to have
more panic attack like symptoms. The panic attacks were not precipitated by any known triggers but mainly when the
patient was given a distasteful noncombat assignment.
6 . To support his case, the Applicant provided documentation of PTSD treatment provided by the VA between 23-24 March 2005 , while home on leave. Although the record does show the Applicant was diagnosed with PTSD by the VA, the record does not show the Applicant ever advised Navy medical personnel of the diagnosis by the VA or any treatment he received from the VA .

7 . The Applicant’s statements made to the VA while getting the PTSD diagnosis and treatment in March 2005 do not concur with statements made at other times and to other authorities .

         - On 23 March 2005 , during his intake sessions with the VA, the Applicant reported he did engage in direct combat with the enemy and was in fear of being killed during his first tour in Iraq . This conflicts with his statement made on his Post-Deployment Health Assessment of 10 May 2003.

         - Also on 23 March 2005, the Applicant reported …”he was pulled off the line in March, 2005 and treated by a military psychiatrist for panic attack. The psychiatrist prescribed Zoloft and Clonopin and sent [the Applicant] home for a one month “rest” period.” This is clearly not an accurate statement. The Applicant left Iraq in March 2005 because his tour was over and his unit returned the U.S., his leave was not prescribed by his doctor.

Based on the factors enumerated above, the NDRB determined the Applicant was never diagnosed with service related PTSD by military medical personnel who had complete access to his complete medical record and accurate service history; his anxiety existed prior to entering the service and he was never found to be not responsible for his actions. Additionally, there is concern over what appears to be obvious conflicting information provided on 2 PDHA forms upon return from deployment and verbal information provided years later to the VA of the same deployment. Therefore, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.
After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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

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