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USMC | DRB | 2013_Marine | MD1301661
Original file (MD1301661.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130820
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)       20011017 - 20 0 11112     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20 0 11113     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020816      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 40
MOS: 9971
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

Periods of UA: 20020421 -20020429, 9 days
NJP:

- 20020625 :      Article (Absence without leave; did absent himself without proper authority on or about 1800, 20020527 and surrendered himself on or about 1530, 20020611, 15 days)
         Article (Wrongful use, possession, etc. of controlled substances , marijuana, 118 ng/mL )
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         “ PVT ”
         “ E-1 ”
         “ 00 08 11
“ ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, 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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 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 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.       The Applicant wants medical benefits from the Department of Veterans Affairs (VA).
2.       The Applicant wants a medical discharge.
3 . The Applicant contends he was not given the opportunity to comply with ordered programs due to threats against his life and fear of being raped, c ausing mental and physical distress that led to alcohol and drug abuse.
 4 . The Applicant contends he suffers from service - connected P ost-Traumatic Stress Disorder (P TSD ), anxiety, insomnia, panic attacks, and paranoia . The Applicant contends he suffers from service - connected P ost-Traumatic Stress Disorder (P TSD ), anxiety, insomnia, panic attacks, and paranoia.


Decision

Date: 20 1 4 0 605            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 claim of PTSD, in accordance with U.S. Code, Title X, Section 1553(d)(1), the Naval Discharge Review Board reviewed the Applicant’s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury. A review of his record revealed that he did not deploy in support of a contingency operation, and so his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1). Due to the Applicant’s contention that he suffers from non-combat PTSD, anxiety, insomnia, panic attacks, and paranoia, the NDRB included a psychiatrist.
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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 15 days) and Article (Wrongful use, possession, etc. of controlled substances, ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 15 October 2001. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.
Issue 1: (Nondecisional) The Applicant wants medical benefits from the VA. 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.
Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant wants a medical discharge. Department 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. Further, p er regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. T he evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. Relief denied.



Issue 3: (Decisional) ( ) . The Applicant contends he was not given the opportunity to comply with ordered programs due to threats against his life and fear of being raped, c ausing mental and physical distress that led to alcohol and drug abuse. There is no evidence in the record, nor did the Applicant provide any evidence , to indicate he was denied the ability to u s e 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 and Marine Corps Relief Society, Family Advocacy Programs, or even the Red Cross. There is also no evidence that shows his command prevented him from seeking treatment or attending prescribed follow-on treatment. On the contrary, the record shows the Applicant was receiving treatment by a Licensed Psychologist at Supportive Therapy Department, Camp Pendleton. It is documented during these sessions that the Applicant was eager to get out of the Marine Corps and stated no concerns about his mental health or treatment by fellow Marines, to include physical or sexual assault . The therapy sessions reveal a significant history of pre-service drug abuse and a strong desire to get out of the Marine Corps. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends he suffers from service - connected P TSD , anxiety, insomnia, panic attacks, and paranoia. The government assumes 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. Though medical records submitted by the Applicant from 2013 indicate medication management for PTSD, there is no diagnosis for PTSD. Also, t he NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s in-service medical record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. Though the Applicant may feel that PTSD and other mental health issues were the underlying cause s of his misconduct, the record reflects willful misconduct that 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.

On 19 Mar ch 2002, as indicated by medical records submitted to the NDRB by the Applicant, he admitted that he had recently used marijuana and cocaine, advised the command of what he had did, was waiting for the urinalysis, and told the command that it would be advisable to follow-up on it. This visit also documented that the Applicant “reports a significant prior drug history, so the recent drug use sounds plausible.” On 26 March 2002, the record shows the Applicant was dropped from G company to SAC rehabilitation. During this visit, the Applicant was enthused about getting out and was o kay with the expected discharge. On 02 April 2002, the Applicant stated that he was still awaiting the urinalysis results, wanted to talk with someone about what may be an erroneous enlistment, and mentioned a shoulder injury in boot camp that he “did not realize he never talked to a military doctor about his shoulder.” On 09 April 2002, the Applicant stated that the SAC informed him that his u rinalysis had come back positive , and he also admitted to smoking marijuana all weekend at the hotel prior to his appointment to ensure he would be discharged from the Marine Corps. The record does not mention any physical or sexual abuse by other Marines but clearly states the Applicant had a long history of drug abuse. Furthermore, the p sychologist did not find that the Applicant was suffering from PTSD but did diagnose the Applicant with an Adjustment Disorder. After a complete review of the Applicant’s statement and those from his brother and mother and after a thorough review of his service and medical records, the NDRB determined PTSD and other mental health issues did not mitigate his misconduct, and his discharge was warranted, proper, and equitable. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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