ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20190415
Characterization of Service Received:   
Narrative Reason for Discharge:   PATTERN OF 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:	 	            	Active:	 

Period of Service Under Review:
Date of Enlistment:  20071203	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080711	Highest Rank/Rate:  LCpl
Length of Service:  00  Year(s)  07  Month(s)  09  Day(s)
Education Level:  12	AFQT:  41
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.3 (NFIR)   Behavior/Conduct: 4.3 (NFIR) 
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  NDSM 

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

SCM:    SPCM:    CIVIL ARREST:     NJP:  NONE  

CC:  1

- 20100901:	Offense:  Fraudulent insurance claims and recklessly causing a fire.  
	Sentence: 90 Days in State jail 

Retention Warning Counseling:  3

            - 20090712:	Eligible but not recommended for promotion for lack of responsibility
            - 20090805:	Eligible but not recommended for promotion for lack of responsibility
            - 20110910:	Failure of semi-annual PFT

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:  Adrian Castilleja	
	Witness E-2:			Witness C-2:  Jed Adolfo

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 Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant seeks an upgrade because the administrative discharge board committed a procedural error.
2.	The Applicant seeks an upgrade because the basis for his discharge was arbitrary and capricious.
3.	The Applicant seeks an upgrade because his in-service conduct was honorable. 

Discussion

Date:  20230108		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:

:  The Applicant seeks an upgrade because the administrative discharge board committed a procedural error.

The Applicant seeks an upgrade because the second administrative discharge board committed a procedural error when they recommended the Applicant for a discharge based on actions that had already been reviewed by the separation board in August 2009.  The Applicant asserted that the Marine Corps Separation and Retirement Manual states, “No Marine will be subjected to administrative separation board action based upon conduct which has previously been the subject of administrative discharge board proceedings when the evidence before the subsequent board would be the same as the evidence before the previous board.”  The Applicant admitted during the hearing that he did not go in front of a second administrative board as claimed on page 5 of the Applicant’s legal brief. He also stated that his administrative discharge process began in January 2012 and that it stopped his review for a medical discharge for an injury to his shoulder.   

The Board found that a procedural error was not made in determining the Applicant’s discharge.  A separation board reviewed the evidence and determined that there was not enough evidence to separate the Applicant in August 2009.  The evidence was made up, in part, of witness testimony from the Applicant’s family members and friends where they all claimed that the Applicant told them that he had a plan to set his car on fire in order to collect insurance money.  He spoke of this plan prior to consuming alcohol and executed the plan upon returning from a party.  The Applicant says that he was very inebriated from the amount of alcohol consumed, but witness testimony stated that the Applicant drove his car to another location and then set it on fire.  With all of this evidence, the board decided not to separate the Applicant because the evidence “does not prove any of the act or omissions alleged in the notification.”  

After reading the decision of the administrative board, the Commanding Officer exercised her right, in accordance with MARINE CORPS ORDER 1900.16 CH 2 which states that if the separation authority, “disagrees with the administrative board’s finding(s) that one or more of the reasons for separation alleged is not supported by a preponderance of the evidence, and the board recommends retention.”  (MARINE CORPS ORDER 1900.16 CH 2 ¶ 6214).  She appealed to her higher authority, with the full support of the JAG, who agreed and submitted the request for discharge to the Secretary of the Navy. 

The Board also found that the Applicant was informed in April 2011, that he was being recommended for administrative discharge because of the incident with his car and was being recommended for a General (Under honorable conditions).  He had an attorney at the time and sought council when signing the documents acknowledging the proceedings.  In this document, the Applicant waived his rights in connection with discharge proceedings.  

:  The Applicant seeks an upgrade because the basis for his discharge was arbitrary and capricious.

The Applicant seeks an upgrade because the basis for his discharge was arbitrary and capricious.  The Applicant explained that he had turned in all of his gear because a medical board decided that he was not medically fit to remain in the service.  He later clarified that he never had a medical board and was not in the process of checking out when he failed to bring his gear with him for annual training (AT) on January 26, 2012.  In his statement, Applicant’s exhibit 11, the Applicant states that he did not have his gear January 26, 2012 because he was ordered to turn it in after his administrative board that occurred in August 2009.  The Applicant also contends in Exhibit 11 that medical informed him that he was not medical cleared to participate in “any field exercises or any physical activity”.  As evidence, he presented Exhibit 29 which is a letter from medical stating that the Applicant was not permitted to do pull ups, lift anything over 5 pounds, or lift anything over his head. This note further states that the medical recommendation “requires administrative approval” by his parent command.  The Applicant and the witnesses testified that the riffle shoot and qualification happened during the course of one day. 

In Exhibit 11, the Applicant admits that he was informed that he and the rest of his unit would be going to the shooting range during their AT and states that he was not given a full pack load when he failed to bring his gear for the event.  The Applicant contends that there was no evidence that he cheated and is not aware as to the disposition of the other individuals who were accused of cheating at the range. 

The Board found that the Applicant failed to address all of the reasons that he was discharged.  One of those reasons was that he set his car on fire in order to collect money from his insurance.  In failing to address this claim they seem to default to that reason being a valid reason for the Applicant’s discharge.

In regards to the shooting range incident, both witnesses brought before the board admitted that it was possible for someone to cheat on the shooting range.  Though the Applicant denied touching the score cards during his hearing, both witness statements that he provided in Exhibit 13 and his own statement in exhibit 11, state that the Applicant was taking scores at the riffle range.  In Exhibit 13, Maj. Howard provided some of the evidence that led him to believe that the Applicant and others had cheated.  When the staff began conducting cheat tests because 36 of the 57 shooters had scores that qualified them as experts with 18 scoring about 230.  Some of the Marines who’s scores appeared to be altered were asked to shoot again.  The score cards pulled were marked by the Applicant. One Marine scored higher, the others scored:

3831
1st Score: 206
2nd Score: 198

0098
1st Score: 234
2nd Score: 219

1990
1st Score: 230
2nd Score: 194
 
wrote a statement that they knew that cheating was occurring because the scores were too high, but also because they instructed members not to shoot in order to see what the scores would come back as.  Instead of the scores coming back as missed, they came back with points.  The same statements verified that the Marines were at the shooting range for two days, not one day as claimed by the Applicant and his witnesses. Based on the facts, the Board, determined that a presumption of government regularity was appropriate.   

The Applicant checked out gear prior to leaving for the riffle range. The Applicant stated that when the unit reported back to base everyone was ordered to go grab their gear and then line up in formation.  If the Applicant had his gear, he would have checked it back at the location where he checked it out.  He stated during the hearing that he did not go back to the checkout location to report the gear missing.  He stated that he didn’t report it to the gear drop-off person because they left prior to the formation breaking.

The Board determined that the Applicant knew that he was supposed to report lost gear to the department from whom he checked it out.  The Applicant admitted that he did not report the missing gear at the location where he checked the gear out and so failed to notify the appropriate authority.  did not state that knew of the Applicant’s lost gear, his statement is only that if the information provided to him by the Applicant is true, then is to blame.  The Applicant pointedly does not have a statement admitting that he is to blame and not the Applicant.  Based on the facts, the Board determined that a presumption of government regularity was appropriate.   
In accordance with these conclusions, the Board found that the Applicant was appropriately charged with pattern of misconduct.

:  The Applicant seeks an upgrade because his in-service conduct was honorable.

The Applicant seeks an upgrade because his in-service conduct was honorable as evidenced by his outstanding post-service conduct.  The Applicant asserts that being arrested, convicted of 2 misdemeanors, and spending time in jail should not be considered when determining whether his service was honorable because he was drunk and it was uncharacterized product of his youth.  He continues saying that his high moral character would not have allowed him to cheat at the rifle range or misplace government equipment and not report the loss.  The Applicant sites his community service as a beacon of his character. 

The Board found that, even if the Applicant did not cheat at the range or fail to report lost gear, his in-service conduct was still not honorable because he set a car on fire and was convicted of 2 misdemeanors.  At the end of his hearing, the Applicant said that he owned up to his actions.  He stated multiple times during the hearing and to the people that testified for him during his administrative board in August of 2009, that he pled guilty because he ran out of money and could no longer afford to continue with his case.  Each person that testified for the Applicant referenced the Applicant telling them this.  At the very end of his hearing, after repeating this version of events multiple times, the Applicant admitted that he knew that he could have received a public defender at no cost to him for his defense, he acknowledged that he did know this at the time that he pled guilty.  He admitted that he did not take a plea deal because he wouldn’t have an attorney otherwise, he admitted that he took the deal because it was better than being convicted of a felony.  

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.  

When reviewing discharges, the Board considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  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 Applicant engaged in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  This conduct typically results in being separated with an under other than honorable conditions.  Here, the Applicant was already discharged as though his service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of the member’s service record and therefore, the Applicant does not warrant an upgrade.  In making its determination, the Board …

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 service members, 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 service members receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and higher than 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  MISCONDUCT - PATTERN OF MISCONDUCT with a corresponding separation code of BKA1 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

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

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.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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 that 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.