ex- Cpl, 

Current Discharge and Applicant’s Request

Application Received: 20170105
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] 

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:	USAR 20060308 - 20060926  UNCH
				 20061017 - 20100901  

Period of Service Under Review:
Date of Enlistment:  20100902	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20140816	Highest Rank/Rate:  Sgt
Length of Service:   Year(s)     Month(s)   15 Day(s)
Education Level:  	AFQT:  44

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  NUC (2) GCM (2) NDSM ACM (w/2 stars) ICM (w/2 stars) GWOTSM SSDR NATO (2) CoA LoA  

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

NJP:    SPCM:     CIVIL ARREST:      CC:  

SCM:  

- 20130613:	Article 108 (Military property; loss, damage, destruction, disposition) 2 specifications
	Article 121 (Larceny) 2 specifications
	Sentence:  
	CA: The sentence is approved and ordered executed

Retention Warning Counseling:  

- 20130613:	For violation of Article 108 and 121 of the UCMJ for which you were convicted at a Summary Court-Martial on 20130613. 

- 20131022:	For violation of Article 134 of the UCMJ, specifically on or about 20130410, Warner Robins Police Department was dispatched to your resident and was advised by Robins Law Enforcement that you had a knife and were threatening to kill yourself and others.  

NDRB Documentary Review Conducted (date):	20150430
NDRB Documentary Review Docket Number:	MD15-00446
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:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 061017 UNTIL 100901”
	  “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:	
 			Betzaido Castro-Arocho

Types of Witnesses Who Testified

	Expert:  			Character:    

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

	Additionally, Mr. A, an employee of the NDRB, served as interpreter during the hearing.

Pertinent Regulation/Law

A.  Paragraph 6210.6, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 108 and 121.   

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

Applicant’s Issues

1.	The characterization of discharge was inequitable as others who behaved similarly within his shop were not punished or separated.
2.	The characterization of discharge was inequitable due to the service member having been subject to hazing, harassment, and discrimination.
3.	The characterization of discharge was improper as the Applicant was not mentally competent to make sound decisions regarding the legal processing of his case.
4.	The characterization of discharge was inequitable due to his combat-related PTSD.
5.    The characterization of discharge was improper as he was warned at the time of his Summary Courts-martial (SCM) in June 2013 that he could be separated due to future misconduct, but then the basis of his separation was his suicidal gesture in April 2013, which occurred prior to his SCM.

Discussion

Date:  20180111 		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 potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The Applicant’s service record documents completion of a deployment from from September 2008 to April 2009 in support of Operation IRAQI FREEDOM and from April to November 2011 in support of Operation ENDURING 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 UCMJ:  
Article 108 (Military property; loss, damage, destruction, disposition) 
Article 121 (Larceny), 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  his rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.   

:  The Applicant contends that his  characterization of discharge was inequitable as others who behaved similarly within his shop were not punished or separated.  In addition to his testimony, the Applicant presented the results of his NCIS polygraph; it interpreted as valid his statements that he saw others misappropriate government goods.  The Board did not have available for review either investigations or personnel files regarding the other individuals.  Based on the presumption of regularity, the Board concludes that if there were sufficient evidence, these Service members would have been charged as well.  There was in fact sufficient evidence of Mr. Soto’s crime, including his written confession.  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.

Issue 2:  The Applicant contends that his characterization of discharge was inequitable due to the service member having been subject to hazing, harassment, and discrimination.  The Applicant described, through representation, the discrimination he faced at his last command related to being Puerto Rican and not having full fluency of the English language.  The Board acknowledges that there was likely a component of hazing, harassment, or discrimination, at least from the Applicant’s viewpoint, but the Applicant did not pursue actions such as filing an Equal Opportunity compliant, contacting the Inspector General, or requesting mast.  The Board further noted, within the separation paperwork, that the Applicant’s commanding officer recommended a General discharge, but the general officer opted for Other Than Honorable; this indicates that those closest to the Applicant were more lenient and not intent on a harsher disposition due to discrimination.  As discussed in in Issue 1, the Other Than Honorable characterization settled on by general officer is within the realm of reasonable given the misconduct performed.  Relief denied.

Issue 3:  The Applicant contends that his characterization of discharge was improper as the Applicant was not mentally competent to make sound decisions regarding the legal processing of his case.  The Applicant was well engaged in psychiatric care during the time of his Courts-martial and through to his administrative separation.  He was acutely sick on a few occasions, requiring hospitalization, and it is clear he was not fully mentally healthy.  However, he was never deemed incompetent by medical authority.  Indeed, even with such close observation and care, he was never referred to a competency review, so his ability to handle his own affairs was not even a questionable issue for his psychiatric providers.  Moreover, when the Applicant elected the option to plead guilty at a Summary Courts-martial over facing charges at a Special Courts-Martial, he was specifically advised to seek counsel and provided with the address and phone number of the local Marine Forces Reserve legal defense office; this memo is dated 09 May 2013.  Relief denied.

Issue 4:  The Applicant contends that his characterization of discharge was inequitable due to his combat-related PTSD.  The Applicant has significant PTSD related to his combat experiences; he is currently unemployed, on multiple serious medications, and fully engaged as a patient in emotional recovery.  This has been somewhat hampered by the devastating hurricanes last summer.    The Applicant did not present for mental health care until after being investigated for his misconduct, but his providers ultimately opined he had latent or sub-clinical PTSD that did not rise to the level of being disruptive to duties until after further complicated by the stress of his legal issues.  While in service, he repeatedly suffered from suicidal and homicidal ideation, including on 10 April 2013, the day for which he was given a Retention Warning Counseling on 22 October 2013.  He was hospitalized and/or referred to residential PTSD care on multiple occasions.  The Board can understand how a person with significant mental health problems may view his employment and his legal issues with some ambivalence, but as discussed in Issue 3, Mr. Soto was never deemed incompetent; moreover, there is no clear indication that had he been free of PTSD and a better advocate for himself, that he would have received a better characterization in light of his offences.  PTSD can be viewed as a mitigating factor in the misconduct of some service members.  However, the Board could establish no credible nexus between the PTSD symptomology and the larceny committed by Mr. Soto such that it mitigated his crime.  Relief denied.

Issue 5:  The Applicant contends that his characterization of discharge was improper as he was warned at the time of his Summary Courts-martial (SCM) in June 2013 that he could be separated due to future misconduct, but then the basis of his separation was his suicidal gesture in April 2013, which occurred prior to his SCM. While the wording on his retention warning is misleading, it is neither improper nor unusual to separate someone following a SCM with guilty findings or pleas.  The Applicant’s medical record indicates he was categorized as “high risk” and placed on a watch list until September 2013; this may be the reason for his command delaying action regarding his administrative processing.  Incidentally, he was referred to the Physical Evaluation Board for his worsening PTSD just prior to the beginning of administrative separation procedures; if the Applicant feels he should have been provided a medical discharge, he should review the Appendix for information on contacting the Board of Corrections of Naval Records.  The Board did complete a thorough review of the circumstances that led to the discharge and the discharge process and found that the discharge met the pertinent standards of equity and propriety.   Relief denied.

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 (SERIOUS OFFENSE) with a corresponding separation code of HKQ1, 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.