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USMC | DRB | 2009_Marine | MD0900741
Original file (MD0900741.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090210
Characterization of Service Received:
Narrative Reason for Discharge: FAILURE TO PARTICIPATE
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: MEDICAL/PTSD

Summary of Service

Prior Service:
Inactive:         NONE              Active:  

Period of Service Under Review:
Date of Enlistment: 20010924     Age at Enlistment:
Period of E nlistment : Years
Date of Discharge: 20050413      H ighest Rank:
Length of Service :
         Active:  Y ea r ( s ) M on th ( s ) 28 D a y ( s )
         Inactive:        Y ea r ( s ) M on th ( s ) 11 D a y ( s )
 Education Level:        AFQT: 50
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle AFRM

Periods of UA / CONF :

SCM: SPCM: CC: Retention Warning Counseling :

NJP:
- 20040306 :       Article 92 ( Disobeyed lawful order - refusing Anthrax shot)
         Awarded: Suspend ed:



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 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001
until Present.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 3300.

C. Table 61 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001, Guide for Characterization of Service.

D . 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 .



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

Applicant’s Issues

 1. (Decisional) Equity of discharge due to refusing to take Anthrax vaccination.
2. (Decisional) Applicant w ants n arrative r eason for discharge change d due to p ost - service diagnosis of PTSD.

Decision


 Date: 20 0 9 0924            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. 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 reflects, one Non-judicial Punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (Disobeyed a lawful order – refused Anthra x shot.) Following his NJP, the Applicant refused to actively drill with his reserve unit to avoid future vaccinations . He missed a total of 12 scheduled drills. Based on these offenses , his command administratively processed him for separation. Despite having a letter hand- delivered to his home and his unit leaving a message on his answering machine to contact them, the Applicant refused to acknowledge his a dministrative s eparation p rocessing package. The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge.
: (Decisional) ( ) . The Applicant contends he is entitled to a discharge upgrade due to his in-service record, excluding his refusal to take the Anthrax vaccination. 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 Applican t’s record of service reflects one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobeying a lawful order – refusing Anthrax shot). Violation of Article 92 (Disobeying a lawful order) is considered a serious offense 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 Applicant completed two periods of active duty (to include a tour in Iraq) and attended every drill period prior to his NJP, which was his only disciplinary action. He earned average PRO/CON marks of 4.3 / 4.3 respectively. At the time of the Applicant’s administrativ e discharge, per Chief of N aval Operations (CNO) message DTG 091306ZJAN2004 , all naval personnel were required to be inoculated with the Anthrax vaccine. A s ubsequent CNO message DTG 290118ZOCT2004 suspended the administering of Anthrax immunizations until further notice. Since the regulation ha d been relaxed since the Applicant’s NJP, the NDRB determined that relief was in order , and grants an upgrade in the Applicant’s c haracterization to Honorable conditions based on his record of service.

: (Decisional) ) . The Applicant states he requests an upgrade to get medical benefits due to being diagnosed with Post - traumatic Stress Disorder (PTSD), but does not state the specific details of his needs. The Applicant did provide documentation (VA file Number 384 84 8609) stating that he is receiving 50 percent disability for PTSD as of 26 February 2008. In the Applicant’s personal statement , he clearly notes that he did not drill (and was subsequently discharged) because he did not want another cyst to form on his arm as a result of the Anthrax shot. He provides no proof h is discharge should be based on PTSD, vice refusal to drill. The NDRB determined an upgrade based on PTSD would be inappropriate. However, since his discharge was a direct result of his refusal to drill because of mandated Anthrax shots, an order which was later rescinded, the Board determined it would be appropriate to change his Narrative Reason to SECRETARIAL AUTHORITY.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, the Board found Therefore, the awarded characte rization of service shall change to Honorable, and the narrative reason to SECRETARIAL AUTHORITY.


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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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 NDRB 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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