ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20170907
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:	 19970603 - 20010124  

Period of Service Under Review:
Date of Enlistment:  20010125	Age at Enlistment:  
Period of Enlistment:   Years  23 MONTHS Extension
Date of Discharge:  20070111	Highest Rank/Rate:  Sgt
Length of Service:   Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  57
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  KDSM ICM SSDR (3rd Awd) GWOTSM NDSM GCM CoC (3rd Awd)  

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

SPCM:    CIVIL ARREST:      CC:  

NJP:  

- 20040310:	Article 117 (Provoking speech, gestures) 
	Article 128 (Assaults)
	Article 134 (General article) Communicating a threat
	Awarded:       Suspended:    15 days   

- 20061023:	Article 90 (Assaulting, willfully disobeying superior commissioned officer) 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Article 134 (General article) Communicating a threat
	Awarded:       Suspended:      

SCM:  

- 20060822:	Article 134 (General article) Adultery
	Sentence:   
	CA: The sentence is approved and ordered executed 

Retention Warning Counseling:  

- 20031002:	For disrespect to a SNCO 

- 20040419:	For NJP for violation of UCMJ Articles 117, 128 and 134 

- 20060822:	For assignment to “High Risk” catergory of the NCO Mentorship program due to Court Martial conviction.  

NDRB Documentary Review Conducted (date):	20080619
NDRB Documentary Review Docket Number:	MD08-00957
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 discharge characterization is improper in that there was undue command  influence asserted by his unit’s Sergeant Major who encouraged Mr. Nitsch’s supervisors re-write their recommendations for characterization in a less favorable manner.  
2.	The Applicant contends his discharge characterization is inequitable in that his PTSD, as a mitigating factor, was not considered at time of discharge.

Discussion

Date:  20180316		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 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The Applicant’s service record documents completion of a deployment  from February through August 2005 in support of Operation IRAQI FREEDOM.  Pursuant to § 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 90 (Assaulting, willfully disobeying superior commissioned officer) 
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
Article 117 (Provoking speech, gestures)
Article 128 (Assaults)
Article 134 (General article)

  for  of the UCMJ:  
Article 134 (General article) 

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation. When notified of administrative separation processing, the Applicant  his rights to consult with a qualified counsel and submit a written statement. He had waived his right to an Administrative Separation Board as part of his pre-trial agreement granting Summary Courts Martial in lieu of Special Courts Martial.

:  The Applicant contends his discharge characterization is improper in that there was undue command influence asserted by his unit’s Sergeant Major who encouraged Mr. Nitsch’s supervisors re-write their recommendations for characterization in a less favorable manner.  

When notified of the administrative separation proceedings on 31 August 2006, Mr. Nitsch elected to submit a statement and sought out input from supervisors.  From the package the Applicant submitted, it appears five junior officers and NCOs, a combination of current and prior supervisors, submitted reviews between 04-20 September 2006; two recommended Honorable separation, two recommended General, and one recommended Retain.  In his letter to his Commanding General requesting retention, dated 23 September 2006, Mr. Nitsch included the three recommendations from his prior supervisors (1stLt Harper, General; SSgt Perryman, Retain; SSgt Ratliff, Honorable).

The Applicant’s package to NDRB also contained an undated email without a header from SgtMaj Unik of 2d LAAD Bn stating that these recommendations were unreasonable and needed to be re-written with a date preceding 25 October 2006, the date of the CO’s letter to Group recommending administrative separation with OTH.  1stLT Thornburg and GySgt George, previously recommending General and Honorable respectively, submitted new letters dated 01 and 20 October 2006, both now recommending OTH.  These were included as enclosures to the CO’s letter, as was Mr. Nistsch’s request for retention.  

It is not clear if the favorable recommendations from 1stLt Harper, SSgt Perryman, and SSgt Ratliff – as enclosures of an enclosure – were included for the general’s review; they are not included with the package in his official record but neither are those of 1stLT Thornburg and GySgt George.  As they are clearly listed as enclosures in Mr. Nitsch’s request for retention, the Board assumes they were in the package and were noted by the CG when the package was reviewed.

The board found that it is within the realm of normal operations for a sergeant major to provide  recommendations to junior officers and SNCOs.  Further, Sgt Maj Unik delivered advice to 1stLT Thornburg and GySgt George not an order; additionally, had the original letters from been forwarded to the Commanding General, the general would have had to weigh the incongruity of what 1stLT Thornburg and GySgt George were recommending when compared with the wealth of misconduct – to include yet another NJP since the recommendations had been written – and the sage opinion of the Commanding Officer; the Board viewed this case as if through that circumstance.  Based on the abundance of misconduct, together with the Applicant’s lack of remorse at the time and the recommendation of the Commanding Officer for an OTH, the Board concluded that an OTH characterization was appropriate, even when weighted against the more favorable recommendation opinions.  No relief warranted.
 
:  The Applicant contends his discharge characterization is inequitable in that his PTSD, as a mitigating factor, was not considered at time of discharge.

The Applicant was diagnosed in service with Chronic PTSD in December 2006, after the decision for his discharge characterization had already been made.  Of note, the Applicant was in mental health care for months prior to this, first with Marine and Family Services for anger management treatment and then with both a psychologist and psychiatrist with Navy Medicine, with the diagnoses of Intermittent Explosive Disorder and Personality Disorder.  He has continued with care for PTSD with the VA since his discharge.  He references the experience of witnessing a rocket launcher attack that killed two civilian nationals in Iraq.  His mental health record and official record are consistent in that he experienced frequent indirect fire while in Iraq in 2005; he does not have a Combat Action Ribbon.

The Board recognizes the Applicant’s issue as valid.  His PTSD was not weighed as a mitigating factor at the time of his discharge.  Additionally, since that time, it is now incumbent on the NDRB to provide liberal consideration when considering discharge upgrades to applicants with combat-related PTSD.  Mr. Nitsch therefore qualifies for such consideration.

Along with the Applicant’s testimony, the NDRB performed a thorough review of the Applicant’s submitted package, his official record, and his medical records.  It is quite clear that his pattern of disrespect to his fellow Marines began prior to his deployment, as evidenced by his poor evaluation in March 2003, his retention warning for disrespect to a SNCO in October 2003, and his NJP in 2004.  The Board also noted he had numerous counseling during his first enlistment.  While these are not relevant to forming the basis for the characterization of discharge for this enlistment, these are relevant when determining if misconduct is PTSD-related or more an exemplar of character; in the Applicant’s case, the Board finds it more demonstrative of the latter.  Also, to provide liberal consideration, there needs to be a nexus between the PTSD symptoms and the subsequent misconduct; the Board could find no credible reason that PTSD is a mitigating factor for adultery, the misconduct that initiated his separation process.  The Board did find that PTSD could reasonably have been a factor leading to his increased irritability and lowered impulse threshold, as demonstrated when he threw the honeybun and Coke out of frustration that his wife and children were not being permitted to visit him in the barracks while on restriction.  Thus, the Board applied mitigation when viewing this misconduct; however, had it not even occurred, the Applicant’s offenses up to that point were both significant and substantial enough to warrant an Other Than Honorable discharge.  No relief warranted.

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 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: 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.