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USMC | DRB | 2009_Marine | MD0900987
Original file (MD0900987.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090310
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)       20031031 - 20040926     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040927     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071002      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 68
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA: 200 70711-20070720 ( 9 days) / CONF: NONE

NJP:
- 20060721 :      Article 86 (UA 1200, 20060519 to 1900, 20060614 - 26 days)
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling :
- 20060714 :       For misconduct, specifically, unauthorized absence status from 20060519 to 20060614.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ IN LIEU OF TRIAL BY COURT MARTIAL ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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 :


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

Applicant’s Issues

 1. Nondecisional. Under the circumstances, consider a medical discharge under honorable conditions.
2 . Decisional. Charact erization of service was unjust be cause the Applicant was suffering from post-traumatic stress disorder ( PTSD ) at the time of his misconduct.

Decision

 Date : 20 10 0409            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL .
Discussion

The Applicant’s mother (Petitioner) is requesting an upgrade to her son’s characterization to General (Under Honorable Conditions) and corresponding change to the separation code because her son passed away on 26 November 2008. The NDRB regrets the loss of her son’s life and extends our appreciation for the service he made to our country. Although requests by families to upgrade the characterization of a deceased service member are infrequent, they are not unique. The NDRB reviews these cases as if the Applicant was still living and in an objective manner, but takes into consideration that certain documentation may not be available or reasonable to obtain.

 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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant’s record of service included 6105 counseling warning, and nonjudicial punishment ( ) on July 21, 2006 , for o f the Uniform Code of Military Justice (UCMJ) : Article 86 ( Unauthorized absence ( UA ), 1 specification: 1200, 20060519 to 1900, 20060614 - 26 days) where he was a warded reduction in rank ( ), forfeiture of pay ( ), restriction with extra duty ( ); the and were suspended. The records reveal ed the Applicant was apprehended after being UA from 11 July 200 7 to 20 July 2007 for a period of 9 days. On 3 August 2007, the Applicant, after consulting with counsel , requested separation in lieu of trial by court-martial. The Applicant acknowledged he would be receiving a n Under Other Than H onorable C onditi ons characterization of service, and his request was subsequently approved by his c ommanding g eneral on 22 August 2007.

Issue 1: (Nondecisional) The Petitioner is asking the NDRB to consider the circumstances of her son’s discharge and consider a medical discharge under honorable conditions. 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. Refer to the Addendum paragraph, Medical Conditions and Misconduct , for more information.

Issue 2 : (Decisional ) ( ) . The Petitioner is asking for an upgrade in the charac terization for her son because his misconduct was a result of a traumatic brain injury (TBI) , which occurred in a motor vehicle accident on 6 December 2006. The Applicant was in a coma for 19 days, suffered significant amnesia and underwent extensive rehabilitative therapy for four months at the Minneapolis Department of Veterans Affairs (VA) Medical Center ( VAMC ) b efore returning to his home unit at Camp Lejeune, NC. The Petitioner claimed the Applicant ’s excess ive drinking was a major cont ributing factor to the accident, and was a result of the Applicant ’s attempt to self-medicat e his PTSD symptoms because he did not receive proper treatment for his PTSD.

A r eview of the Applicant ’s medical records reveal ed that while a patient i n the Minneapolis VAMC during a consultation on 27 February, 2007 , he admitted to frequent use of marijuana and occasional use of LSD and mescaline between the ages of 14 -19 (Note: this was not disclosed during his military entrance physical) . In May 2006, while in a UA status, the Applicant was the driver in a single motor vehicle accident (MVA) (rollover after striking a tree ) and was ejected from the vehicle. The consult report dated 27 February 2007 stated the Applicant was reportedly under the influence of heroin and nitrous oxide at the time of the accident. Si nce the NDRB did not have the health records cov er ing this incident, the NDRB cannot verify if he received any TBI or chemical dependency treatment after this accident . The Petitioner disclosed to the therapist that the Applicant had a history of anger, depression and behavior problems. While an adolescent, he attended several sessions of mandatory psychotherapy, but found them to be unhelpful. From the time of his second MVA until his discharge , health record s state d the Applicant was alcohol and opiod dependent. The Applicant refused to attend proffered substance abuse rehabilitation programs. He was hospitalized on 5 July 2007 for paranoid delusions and homicidal ideations. One of his mental health doctors stated the Applicant “is not acutely psychotic and he is attempting to avoid his problems with threats of homicidal ideations. ”

The Petitioner claimed when the Applicant was discharged from the VA hospital he was still suffering from TBI by exhibiting poor judgment and impulsivity. The Discharge Summary dated 25 April 2007 , from the Minneapolis VA hospital stated the Applicant was in no acute stress. Although suffering from depression and anxiety, the Applicant’s primary issues were addictive disorders and po lysubstance abuse, which presents a barrier to higher level TBI rehab ilitation . Although the Applicant exhibited symptoms (such as anxiety, memory difficulty, irritability, and increased level of impulsivity) that would be related to TBI, his final discharge sum mary dated 25 April 2007, stated he wa s being discharged to the Camp Lejeune inpat ient mental health unit and would need supervision due to his substance and medication abuse. However, there were no noted activity restrictions related to his TBI . On 30 April and 10 July, the 2 nd Marine Division psychiatrist evaluated the Applicant and offered him substance abuse rehabilitation; h e refused. In the 10 July evaluation, the doctor recommended the Applicant be administratively separated.

The Applicant reported , while deployed to Iraq from Sept 2005 to April 2006, he was subject to incoming machine fire and improvised explosive device ( IED ) explosions which left him “dazed ,” and saw a friend die and viewed muti lated bodies. Since his return , the Applicant stated he is unable to sleep, is experiencing increasing obsessions and distressing memories of his experiences in Iraq as well as progressively intensifying sense of anxiety and tension and incidents of panic episodes. Additionally , since r eturn ing to the United States , the Applicant’s alcohol abuse progressively intensified. The facts as examined by the NDRB show: 1 ) T he Applicant suffered from PTSD due to his Iraq combat tour. ( The NDRB could not locate his active duty medical records to verify his PTSD treatment ) . He was anxious, impulsive, could not sleep and became delusional after his return from combat operations . 2 ) The Applicant did suffer TBI as a result of his MVA on 6 December 2006. The Petitioner’s claims the Applicant was not treated for PTSD and TBI are ungrounded since his entire five- month rehab ilitation period post his 6 December 2006 accident was centered on his recovery. He was discharged from the VA h ospital with no duty restrictions except for the recom mendation he attend in-patient c hemical substance abuse rehabilitation. 3) The Applicant had a pre-service and in-service history of polysubstance abuse , which he denied and for which he repeatedly refused treatment. 4 ) The Applicant was not subject to any disciplinary action until his return from Iraq , where he suffered from PTSD . 5) The Applicant ’s alcoholism contributed to his disciplinary problems. Due to his repeated driving under the influence ( DUI ) violations and motor vehicle accidents , which involved alcohol, his unit needed to ensure he was treated for alcohol abuse or if he refused, processed him for administrative separation. They did not exercise due diligence by allowing the Applicant to remain on active duty when he refused proper medical treatment. The Applicant ’s unit should have administratively processed him for separation the first time he refused substance abuse treatment while a patien t in the Minneapolis VAMC or when he was back with his parent unit in April 2007 . Based on the Applicant's post-service documentation , official service and medical record s , and taking i nto consideration the statements of the Petitioner , and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds. By majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), and by unanimous vote not change the narrative reason for separation.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, VA medical records and discharge process, the Board found the d ischarge was proper but not equitable. Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .
Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .
C. 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.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.
Employment/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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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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