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USMC | DRB | 2011_Marine | MD1100092
Original file (MD1100092.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101013
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:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020506     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200603 2 9      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 22 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 02 D a y ( s )
 Education Level:        AFQT: 73
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations Rifle AFRM “M” SMCRM GWOTEM PUC

Periods of UA / CONF :

NJP:              SCM:              SPCM:             CC:

Retention Warning Counseling :

- 20031121 :       For failure to maintain the minimum physical requirement of a Marine by failing the PFT. Your failure will impact negatively on your recommendation and eligibility for promotion.

- 20050205 :       For unsatisfactory particip ation in the Selected Marine Corps Reserve , specifically your failure to report to drill as required and you have failed to make any attempt to make up unexcused absences.

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        



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.       Applicant seeks a discharge upgrade to obtain veteran medical benefits.
2.       Applicant contends his discharge was improper , because he was suffering from the effects of P ost-Traumatic Stress Disorder (P TSD ) .
3.       Applicant contends his discharge was inequitable based on his record of service.

Decision

Date: 20 1 2 0 308            Location: Washington D.C .         R epresentation :

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

 As a result of the Applicant’s contention of suffering from PTSD, i n accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

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 identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings but did not reflect any commanding officer nonjudicial punishment (NJP) or trial by courts-martial. The record did indicate the Applicant missed approximately 34 scheduled drill periods within a period of 12 months [ 20031206 (2), 20041105-1106 (3), 200 5 0107-0108 (3), 200 5 0205-0206 (3), 200 5 0304-0306 (5), 200 5 0407-0410 (7), 200 50513- 0515 (5), 20050604-0605 (4), 20050806-0807 (4), and 20050909-0911 (5)] . The record also reflected the Applicant had a pre-service drug waiver for failing the MEPS entrance physical urinalysis (positive test results for marijuana, Mar 2002) and using marijuana 75 times prior to entering the Selected Marine Corps Reserve . Based on the repeated UA offenses committed by the Applicant , and with no effort on his own behalf to rectify his drilling status or to respond to unit attempts to contact him, the Applicant’s command administratively processed him for separation. When notified of a dministrative separation processing , via certified mail , using the procedure on 3 Nov 2005 ( certified mail package signed for upon receipt/delivery on 5 Nov 2005 by the Applicant’s mother ) , the Applicant failed to respond . His failure to respond to official administrative separation processing notification resulted in a waive r of rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . In a character witness statement, the Applicant’s Platoon Sergeant stated , “SNM has missed numerous drills in the past year. I made several attempts to get this Marine back to good drilling status, but I was not successful. Messages were left on answering machine and phone calls never returned. This Marine lacks leadership, initiative, motivation, and responsibility. On my records , this Marine is not and would not be in any way recommended for or in charge of Marines . ” Additionally, the Applicant’s Squad Leader stated , “SNM has missed numerous drills even though monthly drill notices have been sent to his home of record. Phone calls to his phone number of record have not been successful. SNM displayed poor attitude, no motivation, and lack of initiative, SNM has not given the slightest impression that he will correct his lack of commitment with his drill obligations . ” On 7 Mar 2006, the Staff Judge Advocate, 4th Marine Logistics Group , reviewed the Applicant’s administrative separation package and deemed it to be sufficient in law and fact and recommended an Under Other Than Honorable Conditions discharge as also recommended by the Applicant’s Commanding Officer. On 29 Mar 2006, the Separation Authority, after reviewing the Applicant’s service records and recommendations from the chain of command, directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge. The Applicant was discharged as directed on 29 Mar 2006.



: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran medical 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.
Issues 2-3 : (Decisional) ( ) . The Applicant contends his discharge was inequitable based on his record of service , and that his discharge was improper because he was suffering from the effects of PTSD . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB found no medical diagnosis in the service or medical record s to support the Applicant ’ s claim . While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions . In a 6 Sep 2003 P ost- D eployment H ealth A ssessment (PDHA), the Applicant responded to direct questions relating to his overall physical and mental health , summarized as follows: Your he alth is generally GOOD; Any concerns about your health NO ; D uring this deployment have you sought or do you now intend to seek counseling or care for your mental health NO; Any experience that was so frightening or horrible in the past month you had nightmares or thought about it when you did not want to NO ; W ere constantly on guard, watchful, or easily startled NO ; Felt numb or detached from others, activities or your surroundings NO; Are you having thoughts or concerns that you may have serious conflicts with family members or close friends NO ; Y ou might hurt or lose control with someone NO; D id you enter or closely inspect any destroyed military vehicles NO; D id your health change during this deployment STAYED SAME OR GOT BETTER; D id you see anyone wounded, killed or dead during this deployment YES - coalition/enemy/civilian; W ere you engaged in direct combat where you discharged your weapon YES; D id you ever feel that you were in great danger of being killed NO; A re you currently interested in receiving help for a stress, emotional, alcohol, or family problem NO; O ver last 2 weeks how often have you been bothered by little interest or pleasure in doing things NONE ; F eeling down, depressed or hopeless NONE ; T houghts that you would be better off dead or hurting yourself in some way NONE.

Moreover, the records indicate that t he Applicant made no attempt to u se D epartment of Defense or V eteran s A dministration (VA) health care system s to address any issues he may have been experiencing. The Applicant did provide the NDRB with documentation of private mental health evaluation/treatment he received beginning in early 2005. In a 25 Jan 20 05 L CSW Interview ( Richard Hall Community Health C enter) , the social worker wrote “…he also reports that on weekend s he is drinking about 12 beers per evening ‘to get some sleep . ’ He reflects he wants to be medically discharged from the remainder of his obligation. He is not reporting for his MC (unreadable) duties as a reservist. Discussion of client’s safety with his behaviors, particularly ETOH use. Client was suggested VA facility for treatment of PTSD - he rejected this stating the VA does not have a reputation for providing good services . ” On 5 Feb 2005 , the Applicant received a 6105 counseling retention warning ( Unsat Participant in the S elected Marine Corps Reserve) for missing scheduled drill periods. On 8 Feb 05 , he was again interviewed by a private /civilian LCSW who documented “…He is also feeling very optimistic that psychiatrist here will ‘help him out . ’ Tried to explain what psychiatrist role here is. Client states he did not report to drill practice over weekend. Discussed potential consequences of this. Discussed referrals to other more appropriate services geared to helping those who experienced combat-related trauma. Client adamantly rejects referral to VA services…Discussion and intervention focused on attempting to refer client to provider with more expertise on combat-related PTSD . ” On 9 Feb 2005, the Applicant was diagnosed by the Richard Hall Community Health C enter (CHC) Staff as AXIS I: PTSD ; A XIS II: Deferred ; A XIS V: GAF 60 [Rx: Paxil, counseling] . The mental health physician also stated , “ No injury in Iraq; however , he experienced many killings and explosions & violent events …a lso discussed the need to clarify with client that RHCHC does not provide legal/forensic opinions re: clients wish to get out of the service (Marines) . ” A 14 Feb 20 05 entry in his civilian medical record states that “ client is a 23 yr old SWM referred by his insurance company. Is seeking help due to symptoms he’s been experiencing since joining the Marines and the time he spent in Iraq from 1/03-8/03. Client reports being i n combat 4x but being unsure if he killed anyone, but did shoot at Iraqis…For the past yr client reports having difficulty sleeping during the week. He’ll use ambien or darvocet (Mom’s Rx) , tylenol PM or advil to help him sleep, but on the weekend he’ll have a 12 pack and a few shots to help him sleep. Client experiences nightmares and flashbacks of Marines in general – the way he was treated (physical and verbal abuse by drill sergeant). Client is fearful he will be deployed to Iraq again. Client refusing to go back to Iraq or the Marines. Stopped watching the news, can’t put on his uniform, hasn’t shown up to drill practice for last 3 months. Client states he hates the Marines and what they’ve done to his life…alcohol use began at 18 yrs of age. 19-20 drinking daily - 12 pack a day. Stopped drinking for 3 months in boot camp. Started up again when got back from boot camp 1.5 yrs ago. Started drinking 12 beers and a few shots on weekends only. Began smoking marijuana at age 19 for 1 year…Ecsta s y one time. Began abusing prescription meds 1 year ago (ambien, darvocet) . ” An additional entry dated 2 Mar 05 stated “…Has gone to lawyer seeking discharge from Marine Corps . ”


The Applicant r eceived a medical prescription form from Richard Hall CHC that contained the following hand-written statement : “(The Applicant) is being treated for psychiatric illness and is relieved of monthly military duty . ” A copy of this form was faxed to the Applicant’s reserve unit when he was queried for more information; however, there is no evidence within the records that the Applicant submitted any other documentation to his command. D epartment of Defense 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 (PEB) , 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 memb er’s terminated health record.

 In the Applicant’s case, he never utilized or attempted to utilize the DOD or VA health system s to identify and/or treat any physical, emotional, or mental health issues he may have been experiencing. In fact, substantial evidence within the civilian medical documentation indicates the Applicant specifically rejected the idea of utilizing DOD or VA hea l th care even after recommendations from his civilian mental health providers . Evidence within the record also shows the Applicant failed to engage his reserve unit chain of command about any problems he was experiencing and failed to seek help to assist him with those problems . Moreover, although the Applicant’s civilian provider directed him not to participate in USMCR drill activities, the Applicant knew that this physician had no authority to release him from his obligation to attend scheduled drill s . Only the Applicant ’ s C ommanding O fficer had this authority. The Applicant was responsible for his actions and his refusal to cooperate with his chain of command, combined with his serious history of unauthorized absence from his duties in the Marine Corps Reserve, necessitated processing for administrative discharge for failing to participate in the Marine Corps Reserve. Further, a fter a n exhaustive review of the records , the NDRB found no evidence to support , nor did the Applicant provide any evidence to indicate , that he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment s such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned.

Lastly, a n H onorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s record of service included two 6105 retention counseling warnings and unauthorized absence from more than 34 scheduled drill periods. After careful examination of and deliberation on the available evidence, the NDRB determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied .

The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Navy. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf or
1-877-222-VETS (8387).
While reviewing the Applicant’s records, the NDRB noticed a note from the Applicant’s mother indicating frustration with an inability to locate a DD Form 214 that reflected his Under Other Than Honorable Conditions discharge. As a reservist, the Applicant would not have been issued a DD Form 214, which are only issued for periods of active service. Upon his discharge from the Marine Corps Reserve, the Applicant would only have received a letter announcing his separation Under Other Than Honorable Conditions. A DD Form 214 would not have been issued for his reserve service.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


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 Disable d American 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 their 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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