ex- Cpl, 

Current Discharge and Applicant’s Request

Application Received: 20171005
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: SECRETARIAL AUTHORITY
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 20021217 - 20041114               	Active:	 20041116 - 20071021  

Period of Service Under Review:
Date of Enlistment:  20071022	Age at Enlistment:  
Period of Enlistment:   Years  22 MONTHS Extension
Date of Discharge:  20131107	Highest Rank/Rate:  Sgt
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  48

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.1 (2)   Behavior/Conduct: 4.0 (2)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  CAR NUC (5) GCM (2) NDSM ACM (2) ICM (3) GWOTSM OVSM SSDR (2) OSR (2) NATO CoC CoA (6) LoA (2) MM NMCPI  

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

SCM:   SPCM:    CIVIL ARREST:    CC:  

NJP:  

- 20120627:	Article 92 (Failure to obey order, regulation) 5  specifications 
	Awarded:       Suspended:      

- 20121019:	Article 90 (Assaulting, willfully disobeying superior commissioned officer) 2 specifications 
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Article 107 (False official statements)
	Awarded:       Suspended:      

Retention Warning Counseling:  

- 20080725:	For being dropped from MAGTF Counterintelligence/HUMINT Course for academic failure and inability to grasp the course content.  

- 20120510:	For being derelict in the performance of duties.  On the evening of 20120425 and morning of 20120426 you were derelict in your duties as a Sergeant of Marines.  You fraternized by coordinating an evening of one-on-one drinking with a LCpl.  

- 20120808:	For failure to obey a lawful order.  On multiple occasions, you failed to obey a lawful order issued to you by the Commanding Officer.  At approximately 2230 on 20120425, you left your family home in order to spend time with LCpl, a female who is not your wife.  Your wife did not know your whereabouts until you returned home the following morning at approximately 0700.  Due to that incident, you were issued written and verbal orders by the Commanding Officer on 20120510. The orders directed that you have no contact with LCpl outside of your official duties, an even than only while in the company of others.  On multiple occasions, the first known occasion being 20120514, you knowingly and willfully continued to have non duty related contact with LCpl.  Additional known violations include spending time with her in your family hoe on the evening of 20120521, 20120523, and 20120524 while your wife was hospitalized due to complication with her pregnancy.  Additionally, you and LCpl are known to have spent the night of 20120526 together in a hotel room.             

- 20121024:	For willfully disobeying the Military Protective Order on 20120914 signed by the Commanding Officer and issued by a superior commissioned officer.  Having received a lawful command at 1100 and 1315, on 20120913 from CWO4 to go to his work section and work mission, did willfully disobey the same by not going to the work section until about 1500.  Treat SSgt with contempt, a noncommissioned officer by lying to him concerning a violation of Military Protective Order about which SSgt was questioning the Marine.  Even when confronted with a witness statement, Cpl continued to lie to SSgt a second time.  Knowingly make a false official statement to SSgt concerning his whereabouts on 20120914. When questioned, Cpl continued to lie to SSgt concerning his whereabouts.  On 20120919, at approximately 1330, the command was informed by Sgt, US Army, that the accused was seen entering his spouse’s apartment.  The command also received on 20120920 forwarded texts from the accused wife in which the accused admitted to lying.             

Counseling Warning :  

NDRB Documentary Review Conducted (date):	20140710
NDRB Documentary Review Docket Number:	MD14-00336
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:

	  “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 6 June 2007 until 26 November 2013. 

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 that he should have been medically retired.  
2.	The Applicant contends that PTSD was not given due weight at the administrative separation board.  
3.	The Applicant contends that the NJP which formed the basis for the separation was a reprisal for the Applicant instigating an IG investigation and congressional inquiry.  

Discussion

Date:  20190719		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 a mental health condition, including PTSD/TBI, 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 a mental health condition, including PTSD/TBI, potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The Applicant’s service record documents completion of deployments in support of Operations IRAQI FREEDOM and 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 Uniform Code of Military Justice (UCMJ): 
Article 90 (Assaulting, willfully disobeying superior commissioned officer) 
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
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  their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.   

:  The Applicant contends that he should have been medically retired.  The NDRB does not have this authority.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  However, 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.   The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a benefit determination review.

:  The Applicant contends that PTSD was not given due weight at the administrative separation board.  The record does not support this contention.  The Applicant testified that he was screened for PTSD and TBI prior to the administrative separation board convening.  The record confirms the Applicant was in fact screened, pursuant to MARADMIN 328/10, for PTSD/TBI on 24 January 2013.  The Applicant acknowledged receipt of those findings on 25 January 2013.  The administrative board was held on 13 June 2013.  The Applicant was represented by counsel.  The board heard from all relevant parties and came to a nuanced unanimous decision finding that the preponderance of the evidence proved the Applicant engaged in a pattern of misconduct but not a commission of a serious offense.  They recommended separation and a General characterization of service.  On 17 October 2013 the separation authority explicitly stated “In light of this identified PTSD diagnosis I have given extra scrutiny to this administrative separation and characterization of service.  However, I still find that Corporal Arocho’s continuous misconduct warrants separation with a General (Under Honorable Conditions) characterization of service.”  Based on this evidence, the NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  

:  The Applicant contends that the NJP which formed the basis for the separation was a reprisal for the Applicant instigating an IG investigation and congressional inquiry.  Other than the Applicant’s testimony, there is no evidence in the record that supports this contention.  Instead, the record shows willful and continuous misconduct supported by the Applicant’s own admissions of guilt at two NJPs and an administrative separation.  Similarly, the Applicant only rebutted one retention warning counselings which laid out various instances of misconduct and the recommended remedial measures.  In that rebuttal the Applicant confirms he was “rightfully punished.”   Based on the totality of the record, 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 .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  PATTERN OF MISCONDUCT with a corresponding separation code of GKA1, 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.