ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20170622
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:  20000907	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20030103	Highest Rank/Rate:  LCpl
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  53

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

Awards and Decorations (per DD 214):	NDSM 

Periods of CONF:  NONE
Other Time Lost per DD214:  20020102 - 20020111, 10 days

SCM:    SPCM:    CIVIL ARREST:    CC:   Counseling Warning :  

NJP:  

- 20010803:	Article 92 (Failure to obey order, regulation) 
	Awarded:       Suspended:      

- 20020118:	Article 86 (Absence without leave, etc.) 
	Awarded:       Suspended:      

- 20020919:	Article 92 (Failure to obey order, regulation) 
	Awarded: NFIR      Suspended:  NFIR [Extracted from Administrative Remarks]    

- 20021118:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation) 
	Awarded: NFIR      Suspended:  NFIR [Extracted from Administrative Remarks]    

Retention Warning Counseling:  

- 20020117:	For on or about 20020102 at approximately 2100, you were UA when you didn’t return to check in after authorized annual leave.  You did not return until 20020112 at approximately 1135 (9 days).  

- Undated:	For being in a UA status on several occasions, falling asleep in class and not paying debt, and general lack of motivation and slowness accomplishing the simplest of tasks.

- 20020919:	For NJP held on 20020919 for violation of Article 92 of the UCMJ. 

- Undated:	For NJP held on 20021118 for violation of Article 86 and 92 of the UCMJ

NDRB Documentary Review Conducted (date):	20070830
NDRB Documentary Review Docket Number:	MD07-00142
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	     “UNDER OTHER THAN HONORABLE CONDITIONS”
	     “MISCONDUCT”
	
The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps 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:	
 
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 5 June 2007. 

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 contends his mental health and physical condition were contributing factors in his misconduct.
2.	The Applicant contends his discharge is improper because he was not properly notified and aware of his rights during the Administrative Separation Process.

Discussion

Date:  20190823		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.

The Applicant's record of service included:

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

Article 86 (Absence without leave, etc.)

Article 92 (Failure to obey order, regulation)

Article 86 (Absence without leave, etc.) 
Article 92 (Failure to obey order, regulation)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.

:  The Applicant contends his mental health and physical condition were contributing factors in his misconduct.

In review of the evidence of record, the Applicant was subject to and found guilty at four NJPs for violations of Article 92 (Three Specifications) and 86 (Two Specifications).  He was additionally counseled via a Retention Warning Counseling on each of these instances of misconduct and counseled for unrelated circumstances of being in an Unauthorized Absence status on many occasions, falling asleep in class, not paying a debt, lack of motivation, and slowness in accomplishing the simplest of tasks.  Preceding the Applicant’s misconduct, the NDRB found the Applicant was receiving treatment for a back condition and was diagnosed with Depression (Major Depression Event) by a competent military mental health provider.  The stressor associated with this Depression was attributed to the death of the Applicant’s grandmother.  Furthermore, in this mental health evaluation, the NRDB found the Applicant was treated and found fit for full duty.  Subsequent to the Applicant’s third NJP, he was referred to a mental health provider for depressive symptoms with stressors that were attributed to his military service and his family’s legal problems.  In the context of this mental health evaluation, he was found psychiatrically fit for full duty and was recommended to attend counseling in order to enhance his coping skills.

To further support his issue, the Applicant stated that today he still has a bulging disk (back condition), a shoulder issue, anxiety, depression, and post-traumatic stress disorder.  The Applicant indicated most, in not all of these conditions are service connected.  Additionally, the Applicant provided medical documents that were created in 2019 that supports he was under evaluation and/or receiving treatment for some of the aforementioned conditions.  The NDRB found this document to be lacking meaningful detail on his post-service medical conditions and it failed to provide a linkage and nexus to his military service of 16 years ago.
Though the Applicant may feel that his mental health and physical condition were the underlying causes of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that his conditions were sufficient mitigating factors to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that his mental health and physical condition did not mitigate the Applicant’s misconduct.  Multiple periods of unauthorized absence and multiple occasions of failing to obey an order or regulation were all conscious decisions to violate the tenants of honorable and faithful service.  Relief denied.

:  The Applicant contends his discharge is improper because he was not properly notified and aware of his rights during the Administrative Separation Process. 

The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.  The NDRB did note his separation code of HKA1 indicates the Applicant did waive his right to an Administrative Separation Board and in a pre-separation medical evaluation, the Applicant was aware that he was being administratively separated from service.

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.  Other than the Applicant’s statement that he was not notified of Administrative Separation Processing and/or aware of his rights for this process, he provided insufficient evidence to support that his command did not properly notify him of Administrative Separation Processing and his associated rights.  Therefore, the Board concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation.  Additionally, the NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

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 .  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT - PATTERN OF MISCONDUCT with a corresponding separation code of HKA1, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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: 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.