ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20160627
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: REQUESTED BUT NOT SPECIFIED 
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	               	Active:	  

Period of Service Under Review:
Date of Enlistment:  20130805	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20140620	Highest Rank/Rate:  PFC
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  78

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.1 (NFIR)   Behavior/Conduct: 4.0 (NFIR)     
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle   NDSM   

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

NJP:  

- 20140226:	Article 92 (Failure to obey order, regulation) 
	Awarded:     [60 days]  Suspended:   [vacated 01 May 2014]   [vacated 01 May 2014 for 30 days]

- 20140501:	Article 92 (Failure to obey order, regulation)
	Article 107 (False official statements)
	Awarded:            Suspended:    

SCM:  		SPCM:  		CIVIL ARREST:  		CC:  

Retention Warning Counseling:  

- 20140226:	For NJP for violation of Article 92 of the UCMJ

- 20140401:	For not wearing the utility uniform properly and being dishonest to a NCO when questioned about it

- 20140501:	For NJP for violation of Articles 92 and 107 of the UCMJ

Administrative Corrections to the Applicant’s DD 214

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

	  “MISCONDUCT”

The NDRB will recommend to the Commandant of the Marine Corps or Commander, Navy Personnel Command that the DD 214 be corrected as appropriate.

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:	

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 26 November 2013 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 her character of service, narrative reason for separation, and reentry code in order to reenlist in the USMC contending that a reentry code of RE-04 is inequitable because far worse crimes by fellow Marines were committed who went AWOL or were deserters received an RE-04.
2.	The Applicant requests a change to her reentry code stating that she has letters of recommendations from other USMC Non-Commissioned Officers who vouch for her honesty and willingness to learn and move on and that her civilian record is flawless.
3.	The Applicant contends that the discharge characterization was generated under false pretenses because shortly after she reported a sexual assault against her, she was targeted by her fellow Marines, Staff Non-Commissioned Officers, and her leadership, which resulted in her command giving her an Article 15 and placing her on restriction for 60 days.
4.	The Applicant contends that she should not be barred from reenlistment for a prejudice taken against her by her command.
5.	The Applicant contends that her second NJP, which led to her discharge was based on prejudice from her command leaders because she had permission from her Squadron Gunnery Sergeant to miss the formation due to a visit from her family.
6.	The Applicant stated that she received orders to a new chain of command on 05 May 2014 and that she was recommended for to be separated by her old command on 20 May 2014 and contends that her new Commanding Officer should have been the one to decide if she should be recommended for separation. 

Discussion

Date:  20170124		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, TBI, Military Sexual Trauma, or a mental health condition, and in accordance with U.S. Code, Title X, § 1553; 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.  Additionally, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma, or a mental health condition potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with U.S. Code, Title X, § 1553. 

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 92 (Failure to obey order, regulation)
	Article 107 (False official statements) 

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

:  The Applicant requests a change to her character of service, narrative reason for separation, and reentry code in order to reenlist in the USMC contending that a reentry code of RE-04 is inequitable because far worse crimes by fellow Marines were committed who went AWOL or were deserters received an RE-04. Effective 06 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.

:  The Applicant requests a change to her reentry code stating that she has letters of recommendations from other USMC Non-Commissioned Officers who vouch for her honesty and willingness to learn and move on and that her civilian record is flawless.  The Applicant provided one reference from a former Sergeant of the Marines who stated that it is his belief that the USMC was wrong to let go of such a young, aspiring individual, but also stated that it is not his place to say whether the Applicant’s discharge was fair.  The Applicant provides no additional letters of recommendations or any information in regards to her flawless civilian record, other than her statement on her DD Form 293.  

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.  Some of the ways in which our service members are recognized is through the determination of their characterization of service and reentry code.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges and have an opportunity to reenlist.  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 and reentry code were equitable and consistent with the characterization of discharge and reentry code given others in similar circumstances.

Issues 3-5:  The Applicant contends that the discharge characterization was generated under false pretenses because shortly after she reported a sexual assault against her, she was targeted by her fellow Marines, Staff Non-Commissioned Officers, and her leadership, which resulted in her command giving her an Article 15 and placing her on restriction for 60 days.  The Applicant also contends that she should not be barred from reenlistment for a prejudice taken against her by her command.  In addition, the Applicant contends that her second NJP, which led to her discharge was based on prejudice from her command leaders because she had permission from her Squadron Gunnery Sergeant to miss the formation due to a visit from her family.

While the Applicant states on her DD Form 293 that shortly after her she reported a sexual assault against her command gave her an Article 15 (NJP) and restricted her for 60 days, in a few sentences later on her DD Form 293, she contradicts this by stating that she takes full responsibility for her actions for this NJP, which took place on 26 February 2014.  In regards to her second NJP, the Applicant states that she had permission to miss formation.  She was not charged for missing formation, but for leaving the barracks without properly checking out (Article 92) and without a liberty buddy and for providing a false official statement to the First Sergeant of Aviation Maintenance Squadron 1 concerning the liberty violation (Article 107).  In a statement on 20 May 2014, the Applicant admitted to poor decisions and took full responsibility for her reckless behavior.  In a letter to the Commanding General, Training Command, dated 11 June 2014, the Applicant wrote that she accepts and administrative separation due to her misconduct.  She also stated that she will dismiss all charges for the sexual assault and does not want to participate in any court-martial hearing. 

In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Other than her statements of her DD 293, the Applicant does not provide any additional information or evidence that her command had a prejudice against her.  The record of evidence clearly shows the Applicant waived her rights to an Administrative Separation Board.  If the Applicant felt she was being unjustly separated, it was her obligation to contest this at the time when she was notified that she was being recommended for separation.  During an Administrative Separation Board, she would have had the opportunity to mount a defense against the charges.  The Applicant submitted insufficient evidence to support her contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  The NDRB found the Applicant’s character of service, narrative reason for separation, and reentry code were proper and equitable and consistent with what others have given in similar circumstances.  

Issue 6:  The Applicant stated that she received orders to a new chain of command on 05 May 2014 and that she was recommended to be separated by her old command on 20 May 2014 and contends that her new Commanding Officer (CO) should have been the one to decide if she should be recommended for separation.  The NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant does provide a copy of a letter from the CO of Marine Aviation Training Support Group 21, dated on 05 May 2014, that are permanent change of station orders to CO, Marine Aviation Training Squadron, Naval Air Station, Oceana, VA for a detachment date of 16 May 2014.  However, this letter was not signed and there is no evidence that these orders were executed.  There is no information in the Applicant’s service record that indicates that she transferred to a new command.  The Applicant submitted insufficient evidence to support her contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  The NDRB found the Applicant’s character of service, narrative reason for separation, and reentry code were equitable and consistent with what others have given 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.