ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20160322
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	               	Active:	  

Period of Service Under Review:
Date of Enlistment:  20091026	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20130423	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   27 Day(s)
Education Level:  	AFQT:  48

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.8 (NFIR)   Behavior/Conduct: 3.3 (NFIR)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  NDSM ACM (W/1 STAR) GWOTSM SSDR (2) NATO-ISAF AFGHANISTAN   

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  

- 20120329:    Article 92 (Failure to obey order, regulation)
	Article 113 (Misbehavior of sentinel or lookout)
	Awarded:      Suspended:   

- 20120625:	Article 92 (Failure to obey order, regulation) 
	Article 113 (Misbehavior of sentinel or lookout)	 
	Awarded: :      Suspended:   

SCM:  		SPCM:  	CIVIL ARREST:  		CC:  

Retention Warning Counseling:  

- 20120329:	For NJP on 20120329 for violation of Articles 92 and 133 of the UCMJ. 

- 20120625:	For NJP on 20120625 for violation of Articles 92 and 133 of the UCMJ.

- 20121211:	For Pattern of Misconduct and notification of administrative separation. 

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, 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)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant requests a change to his character of service contending that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by his partially diagnosed and partially treated depression and undiagnosed PTSD and insomnia.
2.	The Applicant contends that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by his command’s rejection of a Corpsman’s request for medical evacuation of the Applicant from a live fire environment for further evaluation.
3.	 The Applicant contends that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by the Corpsman’s prescription of Zoloft, which is known to cause sleepiness and in fact did lead to the incident leading to his discharge.
4.	The Applicant contends that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by his command’s discouragement from reporting his condition or seeking treatment and general disregard for the Applicant’s mental health and ability to serve in a live combat environment.

Discussion

Date:  20161013		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.   

As a result of the Applicant’s claim of PTSD or TBI, in accordance with U.S. Code, Title X, Section 1553 (d)(1), and Memorandum, The Secretary of Defense, to Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sep. 2014), the NDRB 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 Applicant’s service record documents completion of a deployment from March to September 2014 in support of Operation ENDURING FREEDOM.

As a result of the Applicant’s claim that a mental health condition impacted their discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), and Memorandum, The Secretary of Defense, to Secretaries of the Military Departments, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sep. 2014), the NDRB included a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorders.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 92 (Failure to obey order, regulation) 2 specifications
	Article 113 (Misbehavior of sentinel or lookout) 2 specifications

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.     When notified of administrative separation processing, the Applicant  their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.  

:  The Applicant requests a change to his character of service contending that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by his partially diagnosed and partially treated depression and undiagnosed PTSD and insomnia.  The Applicant was screened for PTSD post-deployment.  In a letter from the Regimental Surgeon, to the Commanding Officer, 5th Marine Regiment, 1st Marine Division, 20130213, it states that the Applicant does not suffer from symptoms of PTSD related in the line of duty, combat service or deployment.  The Applicant signed the bottom of this letter that stated, “I received a copy of this letter on 20130212.  I understand that I can request additional screening for PTSD/TBI and am encouraged to report any mental health concerns that I may have to medical personnel, a chaplain, or my chain of command.”  

During his deployment, the Applicant was seen by medical personnel at least on six occasions from 20120516 – 20120820 in regards for Major Depressive Disorder in addition to seeing the Corpsman on 20120324.  In a Post-Deployment Health Assessment, 20120806, the Corpsman noted, “Patient is concerned about mental health; he has been seen for mental health due to problems early in deployment.  Patient has faced two NJPs on deployment and is facing administrative separation.”  On a 20120524 medical report, it states under Injury and Illness, “Mental Disorders Cause:  Non-Battle Illness Appointment Class:  Outpatient.”  In this same medical report, it also states “the patient meets criteria for Major Depressive Disorder, single episode, mild.  It appears to be reactive to his poor work performance.”

On the same health assessment mentioned above, the Applicant answered “no” to having sleeping issues or increased irritability and did not see a healthcare professional during deployment about this or is still bothered by it.  He also rated his health the same as before deployment.  He also answered “not difficult at all” for the question “During the past 4 weeks, how difficult have emotional problems (such as feeling depressed or anxious) made it for you to do your work, take care of things at home, or get along with people.  The Applicant also answered “no” scheduling a visit with a health care provider to further discuss health concerns; scheduling a visit with a chaplain or a community support counselor; and  being interested in receiving information or assistance for a stress, emotional, or alcohol concern.  In December 2012, the Applicant filled out a DD FORM 2807-1, Report of Medical History where he checked “yes” to random pain and numbness (since June 2012); ear, nose, and throat trouble, ringing in the ears (since March 2012), depression or excessive worry.

The Applicant stated on page 4 of his brief provided by counsel, “There is nothing in his medical record to suggest that an unsound condition or any of his current disabilities or symptoms were experienced prior to enlistment.”  The counsel provided Exhibit H, which shows the Applicant was seen by a Corpsman concerning his depression.  On 20120324, the Corpsman noted that the Applicant was admitted twice to mental health facilities: one week in 2006 and two weeks in 2007 following an incident where “he held a knife to his chest and threatened his parents with suicide” (prior to enlisting in the USMC).  The Corpsman also noted that he was treated with Zoloft and therapy for one year.  In DD FORM 2807, Report of Medical History, 20090506, at Los Angeles Military Entrance Processing Station, it is noted that the Applicant had received counseling for family problems and a “yes” was checked for mental/psychiatric disorder, counseling, ADD/ADHD. A 20120820 medical report stated, “the Patient denies any past history of suicidal or homicidal ideation (contrary to what was reported to the Corpsman on 29120324).

Though the Applicant may feel that a Mental Health Diagnosis and PTSD were the underlying cause 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 Mental Health Diagnosis was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that a Mental Health Diagnosis did not mitigate the Applicant’s misconduct that violated the tenants of honorable and faithful service.

:  The Applicant contends that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by his command’s rejection of a Corpsman’s request for medical evacuation (MEDEVAC) of the Applicant from a live fire environment for further evaluation.

Based on the notes by the Corpsman on 20120328, the Corpsman wrote the following:  “Recommendation made to Battalion COC for routine MEDEVAC and that BN prefers to hold him on FOB HABIB until OSCAR personnel is made available for visit.”  During his deployment, the Applicant was seen by medical personnel at least on six occasions from 20120516 – 20120820 for Major Depressive Disorder in addition to seeing the Corpsman on 20120324.  There is no evidence that any of these follow-on visits to medical recommended a routine MEDEVAC for the Applicant in support of the Corpsman’s recommendation.

Issue 3:  The Applicant contends that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by the Corpsman’s prescription of Zoloft, which is known to cause sleepiness and in fact did lead to the incident leading to his discharge.  The Applicant was found sleeping at his post on two occasions (March and June 2012), the first of which was prior to when the Applicant was prescribed Zoloft.  

During his deployment, the Applicant was seen by medical personnel at least on six occasions from 20120516 – for Major Depressive Disorder in addition to seeing the Corpsman on 20120324.  A medical report dated 20120524 documents that the Applicant was taking 50 mg of Zoloft daily with a plan to increase this to 100mg daily.  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 Applicant does provide a write-up stating it was from Zoloft’s Medication Guide that instructs the following: “Zoloft can cause sleepiness or may affect your ability to make decisions, think clearly, or react quickly.  You should not operate heavy macherinery, or do other dangerous activities until you know how Zoloft affect you…”   Although the Applicant’s medical records documents the use of Zoloft and he was going to medical in part for sleep related issues, there is no information in the medical reports that tie the Applicant’s use of Zoloft to any sleep issues experienced directly by the Applicant. This was never brought up as an issue by either medical personnel or the Applicant even though the Applicant had ample opportunity to bring up any related side effects from Zoloft to include sleep issues. As previously mentioned in the Corpsman’s report on 20120324, the Applicant was treated with Zoloft for one year in 2007.  There is no information that the Applicant was concerned that Zoloft would cause him sleepiness based on his past experience taking this medication and would have had the opportunity to mentioned this to the Corpsman when it was prescribed or any time after taking the medication.

 The Applicant also stated in the Brief provided by counsel that he took the Zoloft as ordered, but he did not want to tell his Team Leader when asked why he passed out about his medication out of fear of punishment.  He does not provide any explanation of why he would fear punishment for taking a medication he was prescribed.  The Applicant would have also had the opportunity to present this information at NJP, but does not provide any information that this was presented.

Issue 4:  The Applicant contends that his discharge was inequitable because his capability to serve was seriously impacted not by any willful dereliction of duty on his part, but by his command’s discouragement from reporting his condition or seeking treatment and general disregard for the Applicant’s mental health and ability to serve in a live combat environment.  In a letter from the Applicant’s CO to the Commanding General, 1st Marine Division on 20130121, the CO stated that the Applicant “has never sought the assistance offered to him from Navy mental health to address his self-diagnosed depression.”  A Corpsman’s note on 20120324 did state that the Applicant had seen him for depression.  Despite the CO’s statement, it is documented that the command was aware of the Applicant mental health concerns and were pursuing avenues for further examination.  This was noted by the Corpsman on 20120328, when a wrote the following:  “Recommendation made to Battalion COC for routine MEDEVAC and that BN prefers to hold him on FOB HABIB until OSCAR personnel is made available for visit.”  During his deployment, the Applicant was seen by medical personnel at least on six occasions from 20120516 – 20120820 for Major Depressive Disorder in addition to seeing the Corpsman on 20120324.

As previously stated, on the Post-Deployment Health Assessment, the Applicant did not request support for counseling and was not interested in receiving information or assistance for a stress or emotional concern.   The Applicant also rated his health the same as before deployment.  He also answered “not difficult at all” for the question “During the past 4 weeks, how difficult have emotional problems (such as feeling depressed or anxious) made it for you to do your work, take care of things at home, or get along with people.  The Post-Deployment Health Assessment provided the Applicant with an opportunity to further seek help for any mental health issues that he had.  Also, the PTSD screening that the Applicant signed on 20130212 also encouraged the applicant to request an additional screening or report any mental health concerns that he had.  

The Applicant stated in the Brief provided by his counsel that he decided not to rebut these allegations or request a hearing before the Administrative Separation Board because he believed that challenging the allegations of his superior officers would only make matters worse for him.  The record of evidence clearly shows the Applicant waived his rights an administrative separation board.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made.  During an administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant submitted insufficient evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge. Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKA1, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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 Disabled 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.