, ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20180813
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:	  20000724 - 20070516  

Period of Service Under Review:
Date of Enlistment:  20070517	Age at Enlistment:  25
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20080925	Highest Rank/Rate:  Sgt
Length of Service:  01  Year(s)  04 Month(s)  09  Day(s)
Education Level:  12	AFQT:  55
Deployment/Operation: 

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  NDSM GWOTEM GWOTSM CAR GCM(2) MUC NMCAM NUC(2) SSDR COC 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  20080103 - 20080107, 4 days 20080730 - 20080925, 58 days

SCM:   SPCM:   CIVIL ARREST:   CC:  

NJP:  2

- 20080509:	Article 90 (Assaulting, willfully disobeying superior commissioned officer) 
	Article 92 (Failure to obey order, regulation)
	Article 107 (False official statements)
	Awarded: RIR FOP  Suspended:  RIR FOP

- 20080710:	Article 121 (Larceny) 
	Awarded: RIR  Suspended:      

Retention Warning Counseling:  2

- 20080108:	For violation of article 86, unauthorized absence. 

- 20080508:	For violation of articles 90, 92, and 107 resulting in NJP. 

NDRB Documentary Review Conducted (date):	20110512
NDRB Documentary Review Docket Number:	MD10-01256
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 20000724 UNTIL 20070516”
	  “”

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:	
 
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 his discharge was unjust because it is based on a period of time that does not reflect the 
     quality and commitment he demonstrated over 88 months of active duty service.  
2.  The Applicant states that his post-service accomplishments are deserving of consideration for an upgrade. 
3.  The Applicant contends that his misconduct is mitigated by the PTSD he endures from his deployment in support of 
     Operation IRAQI FREEDOM and stressors created by a family situation. 

Discussion

Date:  20201021		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, or Military Sexual Trauma, 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, 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 August 2004 to March 2005 in support of Operation IRAQI FREEDCOM. 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 92 (Failure to obey order, regulation)
Article 107 (False official statements)
Article 121 (Larceny)

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

:  The Applicant contends that his discharge was unjust because it is based on a period of time that does not reflect the 
               quality and commitment he demonstrated over 88 months of active duty service.  

The Applicant contends that his discharge characterization is unjust because it is not reflective of his complete record of service that consisted of 88 months of total service. Prior to the misconduct in 2008 the Applicant’s record contained only a corrective counselling and was absent any documented misconduct. Although the Applicant’s misconduct occurred over an eight month period of time in 2008 it is all accounted for during the period of service under review which began in May 2007.  The Board did recognize the fact that the Applicant has two previous periods of honorable service prior to his re-enlistment in May 2007. However the misconduct that contributed to his administrative separation is what the Board evaluates. Thus while there is no bearing on his previous periods of honorable service the Board is limited to evaluating the conduct of the Applicant and the propriety and equity of the discharge that he was given at the time of discharge. For purposes of this review the period commenced 17 May 2007 and it was the Applicant’s service from this date through 25 Sept 2008 that was analyzed. During this time the Applicant received two retention warning counselings, received NJP for violations of Articles 90, 92, 107 and 121, and has 62 days of unauthorized absence inclusive of being in a Deserter Status. This is significant misconduct that terminated a 48 month contract after only completing 18 months. In addition the Applicant was in a deserter status at the time 

of separation as he had left his command and been away without authorization for 58 straight days. For this purpose relief is denied.  

Issue 2: The Applicant states that his post-service accomplishments are deserving of consideration for an upgrade. 

 The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable. The NDRB considers 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.  The Applicant provided a personal statement, evidence of academic accomplishments and technical certifications, proof of consistent professional employment, and two  character references that highlight his commitment, professionalism and expertise as a medical technician and Registered Nurse. The information provided by the Applicant clearly demonstrates his resilience and fortitude to improve himself and provide an example of how others can lift themselves out of difficult circumstances and succeed. However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review. In this case while it was made clear that the Applicant was struggling with personal family issues that generated stress that challenged his professional responsibilities his decisions associated with the misconduct proved to be serious offenses that reflected an abandonment of core values. The Board determined that the characterization of service received was appropriate considering the length of service and UCMJ violations that occurred under this period of review. Relief denied.

Issue 3:  The Applicant contends that his misconduct is mitigated by the PTSD he endures from his deployment in support of 
     Operation IRAQI FREEDOM and stressors created by a family situation.

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.  The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them.  Furthermore, the NDRB did not find any reference to a medical diagnosis of PTSD in the Applicant’s service record to support his claim, and the Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim.  Though the Applicant may feel that PTSD was an underlying and supporting cause to his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct. Failure to comply with a direct order, misuse of a government vehicle for personal benefit, making a false official statement, stealing cash funds entrusted to be held and accounted for and deserting his command were all conscious decisions to violate the tenants of honorable and faithful service. Given the nature of the misconduct the Board also agreed that the Applicant had already been afforded mitigation as his command sought a more lenient means of discipline through the administrative means of NJP and administrative separation for significant violations that are typically addressed through a punitive discharge process or confinement under the UCMJ.   The NDRB found the characterization of the Applicant’s discharge equitable and consistent with the characterization of discharge given others in similar circumstances.  

While the Applicant may feel that PTSD and his family difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  In addition there is insufficient evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.  For these issues relief is denied. 

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  In this case, the Board found the Applicant’s misconduct to be acts and omissions that constitute a significant departure from the conduct expected of members of the Naval Service. While the Applicant’s recovery and resolve today are noteworthy and admirable the Board determined his discharge at the time was proper and equitable. 

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 .  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  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.