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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20400
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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Just doing some research, Stateside, discharged with RE3P

Customer Question

just doing some research
JA: Are you overseas or stateside?
Customer: Stateside, discharged with RE3P JFV1 afew years back
JA: Have you talked to anyone in the chain of command about this?
Customer: this is a discharge issue no chain of command to speak with anymore lol im trying to get back into the military
JA: Anything else you want the lawyer to know before I connect you?
Customer: well, there are a lot of factors in my case extenuating circumstances, if you will
Submitted: 2 months ago.
Category: Military Law
Expert:  Marsha411JD replied 2 months ago.

Hello,

Thank you for your post, can you tell me what your legal question is? Also, what Service were you in, how many years of service did you have, rank and what was the characterization and narrative reason given for your discharge on your DD 214?

Customer: replied 2 months ago.
Hello Marsha, thank you for your response.I was only in the Marines for all of 1 year and some change before being discharged [Gen. under Honorable, RE-3P, JFV1].The circumstances of my discharge were that I was involved in a motorcycle accident (while on duty on PTAD). I broke both wrists which required surgery (and a screw) to fix. I suffered some negative side effects both from the operation as well as the narcotic pain killer I was prescribed. The military, in their infinite wisdom gave me more medication (an anti-depressant, Paxil) to counter these side effects, but unfortunately I had a very negative reaction to the Paxil and became depressed. The Marine Corps then discharged me with the above characterization and narrative reason, although I never went through a med board.After 5 years or so trying to go back with the discharge I was given (I was told it was not going to be a hinderance to re-enlistment during my discharge process and so waived my right to JAG representation at the time) I applied to the NDRB for an upgrade to Honorable, which, last fall (2016) I received, although they did not adjust the RE code or narrative reason. (During this application I did not submit ANY documentation other than just my military record and did not specifically request that these items be changed)Subsequently, I tried again to re-enlist (into the national guard no less) and got through the entire process up until MEPS who denied me without seeing me.I have currently submitted an appeal to the NDRB, along with a PILE of documentation I have gathered about Paxil (its various lawsuits and documented evidence regarding the exact side effects I was suffering from) and various letters of recommendation and so forth. I am currently waiting for a hearing date in DC for this appeal (The American Legion will be representing me at said hearing). If this appeal fails, I will pursue my case with the BCNR, and appeal that decision should it not go in my favor.NOW, I apologize for the book. My specific questions are in regard to my appeals.
1st) obviously we don't know what the NDRB will do, but what do you think the odds are of a reversal based on the argument that this drug (now KNOWN and DOCUMENTED to cause depression in certain people who fit my profile) are? Line of argument is something to effect of "Discharge/RE Code is INEQUITABLE because it was based on the false premise that I had depression (which new medical research, as well as two recent mental health screenings, show was a result of the medication the military prescribed)" AND Discharge/RE Code is IMPROPER because the appropriate med-board procedures were not followed during the course of my discharge (i.e. I never had a med board)"2) several years ago I was told by another private military lawyer that should all my appeals fail through the government bodies, it is possible to appeal one final time to a civilian federal court. A) is this true? B) is there a name for this so that I can do some more research to try and secure counsel for this in the event that I need to use this option.3) Is there a way around all of this? Do you know if I can contact MEPS directly to get them to override their decision? (which I know is TECHNICALLY possible, but practically, maybe not?)Your help is greatly appreciated, and once again, I sincerely ***** ***** the length of my request.Best,
Joshua
Expert:  Marsha411JD replied 2 months ago.

Thank you for your response. I am unclear though on why you would have received a General discharge versus an Honorable, especially because your separation code JFV1 is for "Discharge because of a physical condition which is not disabling. involuntary, USMC." Your RE code of 3P represents "physical disability." So, none of that is negative in any way, so still scratching my head about the General discharge unless you had something misconduct (civilian or military) in your record.

In any event, as long as your civilian medical records reflect that you have recovered the use of your wrists in a manner that would qualify you physical for duty and the MEPS doctors agree, you could possibly receive a waiver for reentry into the military. Your 3P, along with the separation code would require a waiver.

Waivers aren't particularly easy to get these days simply because accessions are down due to cut back in conflict operations and budget issues. That can change all of the time though and depends are the particular Service and your skill set. But, you can certainly try and see if the Service Recruit Command is willing to go to bat for you on the waiver, assuming your medical is all good.

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the ratings box on this page, then the Site will give me credit for assisting you today. Thank you

Customer: replied 2 months ago.
Thanks for the rapid response!!And yea, I don't understand why they gave me a "General Under Honorable Conditions" discharge either lol, and apparently neither did the NDRB, who, as I said, gave me the discharge upgrade last fall citing the General Discharge as 'inequitable'.The thing that makes my situation sticky is that it really isn't about the wrists- if it were just the wrists I would likely be back in already. The wrist injury was more of a catalyst than anything else. That surgery and the medication cocktail prescribed to me, caused some symptoms that the military viewed as depression which, although never specifically mentioned in any of my paperwork, was the direct cause of my discharge.
Expert:  Marsha411JD replied 2 months ago.

You're welcome Joshua and the same process/rules would apply to getting a waiver for depression as it would for your wrists. In other words, there would have to be lack of a record of ongoing treatment and an agreement by the MEPS doctors that this is not an ongoing issue but was only transitory because of the medications. You would not be able to go directly to MEPS.

By the way, I am not sure what happened but your initial reply to me after I requested the information came back without any of your post after the first 2 paragraphs so I was unaware of your upgrade or the rest of the information when I responded last time. I have just now read that information for the first time. The Site is a little buggy from time to time and this is not the first time that happened to me.

In any event, it sounds like you have a good basis for a change to your RE code. The only issue that I see with the changing of the narrative and separation code is that you actually did apparently have depression as a possible side effect of your medications. If that depression operated to interfere with the carrying out of your duties, then there might have still been a basis for the separation code and discharge. I can't guess how that will go and what your current doctors would say. I can only say that this might be the one hitch. In other words that, regardless of the genesis of the depression, it was present to the extent that it was inconsistent with continued service.

I still think if you have strong supporting current physician input showing no continued issues with depression and its cessation when you got off the meds, that you should be just as qualified as anyone else for service.

As for an appeal of an action of BCNR, their decision can be appealed in Federal District Court in the District where you live. The appeals court's scope of review is somewhat limited. In reviewing a correction board matter, the reviewing court must determine whether the board's decision was arbitrary, capricious, or not based on substantial evidence. That's it. You would want to look for a civilian attorney (usually a former JAG) who has a military law practice. There are many national firms who can represent you and that you and who don't have to be local to where you are to do so since this is Federal Court. Just do a search in your internet browser for military law firm.