ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20190522
Characterization of Service Received:   
Narrative Reason for Discharge:    MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge:    MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: SECRETARIAL AUTHORITY 
Reentry Code change to: SECRETARIAL AUTHORITY

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  20080826	Age at Enlistment:  
Period of Enlistment:   04 Years   Extension
Date of Discharge:  20110412	Highest Rank/Rate:  LCpl
Length of Service:  02  Year(s)  07  Month(s)  17  Day(s)
Education Level:  12	AFQT:  82
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.2 (NFIR)   Behavior/Conduct: 3.6 (NFIR)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  (2) Pistol   GWOTSM NDSM MM 

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

SCM: NONE   SPCM:  NONE   CIVIL ARREST:  NONE  CC:  NONE
 
NJP:  3

- 20090604:	 Article 92 (Failure to obey order, regulation)     x3
	 Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel) 
	Awarded:       Suspended:     

- 20100419:	 Article 92 (Failure to obey order, regulation) 
	Awarded:       Suspended:     

- 20100804:	 Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Awarded:       Suspended:        

Retention Warning Counseling:  5

- 20090607:	For Non-judicial Punishment on 22 May 2009 for violation of Article 92x3 and 111 for violation consuming alcohol while under the legal age of 21.

- 20100429:	For Non-judicial Punishment for violation of Article 92.

- 20100623:	For Non-judicial Punishment for prohibition of use and possession of an unlawful substance “Spice”.
- 20101022:	For Non-judicial Punishment for violation of Article 112a.

- 20100903:	For violation of Article 86 Unauthorized Absence, and Article 91- Insubordinate conduct towards a non-commissioned officer at NJP.

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 6210.6, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 6 June 2007 until 25 November 2013.

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

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, Article 91, 92. 

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

Applicant’s Issues

1.	The Applicant requests a discharge upgrade and contends that he was suffering from a variety of service connected mental health issues which mitigates his misconduct.
2.	The Applicant contends that he was not provided adequate notice that the alleged use of Spice was proscribed by regulation.
3.	The Applicant contends that his alleged misconduct did not constitute a violation because he did not act within the requisite mens rea.

Discussion

Date:  20220721		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.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
Article 92 (Failure to obey order, regulation)  - three specifications 
Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)

:  The Applicant requests a discharge upgrade and contends that he was suffering from a variety of service connected mental health issues which mitigates his misconduct.

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.

Because the Applicant claimed mental health was a factor in their discharge, the Board reviewed the Applicant’s case in accordance with 10 U.S.C. § 1553, and pursuant to the Kurta Memo and other applicable regulations and guidance, including the Wilkie Memo.  Under the Kurta Memo, “[m]ental health conditions, including PTSD; sexual assault; and sexual harassment inherently affect one’s behaviors and choices causing veterans to think and behave differently than might otherwise be expected.”  Although, “[l]iberal consideration does not mandate an upgrade, [r]elief may be appropriate … for minor misconduct commonly associated with mental health conditions … and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.”  Additionally, “substance seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration.”  However, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”  Therefore, “Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.” See USD (P&R) Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” 25 August 2017 (“Kurta Memo”).

The review of discharges pursuant to the Kurta Memo and its other applicable regulations/guidance generally involves four questions: a) Did the veteran have a condition or experience that may excuse or mitigate the discharge; b) Did that condition exist/experience occur during military service; c) Does that condition or experience actually excuse or mitigate the discharge; and d) Does that condition or experience outweigh the discharge?  

In this case, the Board found that: a) the Applicant did have a condition/experience that mitigated the discharge; b) the condition existed during military service; c) the condition/experience mitigated the underlying basis/misconduct for the discharge; and d) the condition/experience outweighed the Applicant’s assigned Discharge Characterization.  

MEDICAL BOARD MEMBER OPINION

1.	Does the available record reasonably support PTSD (or other boarded mental health condition) existed at the time of Applicant’s military service?	Yes – Adjustment Disorder, Anxiety Disorder, Polysubstance Use Disorder, Alcohol Use Disorder (military)	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	Yes	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the Applicant?	Yes	
4.	Medical board member comments:	Reviewed the Applicant’s military and VA treatment records in addition to personal appearance testimony on 21 July 2022.

The Applicant contends (in part) that mental health conditions mitigate his in-service misconduct.

The military treatment records show active mental health treatment starting in February 2010 and extending to the end of the Applicant’s enlistment.  Most of the Applicant’s early stressors (for which he was diagnosed with an adjustment disorder) revolved around family and occupational stressors.  He was initially placed on medication and referred for counseling.  Per an early note (22 February 2010), the Applicant’s stress level had significantly increased two weeks prior to presentation because the presence of Spice in his barracks room.  Diagnoses of alcohol dependence and Spice abuse were added on 10 March 2010 (now called alcohol and substance use disorders).

In May 2010, the Applicant was admitted to SARP for Level 3 residential treatment (alcohol and Spice).  A non-specific diagnosis of anxiety was also added during the inpatient treatment.  Post-treatment, the Applicant continued with his sobriety but noted increased anxiety and mood swings.

Combining testimony from the personal appearance hearing with information I found in the medical/SARP records, I come to the following conclusions:
1.	The Applicant had engaged in significant alcohol consumption prior to joining the Marine Corps.  Once out of his initial training (during which time he remained sober), the Applicant fell back into his prior drinking patterns.  Alcohol and related use sequelae likely played a large part in the emergence of his mental health symptoms as well as difficulties with his chain of command.
2.	The Applicant’s first exposure to Spice occurred well before the December 2009, as proposed in the medical documentation.  Whether the Applicant smoked Spice in July 2009 or was just exposed, he had ample notice of the illegality of the substance.
3.	The Applicant’s anxiety and depression appear multifactorial, without clear indication of which factor dominated.  Sexual identity, withdrawal symptoms from alcohol and Spice, and Spice-related mood disorders all could have possibly occurred.  Under liberal consideration, I will concede that the Board should look at elements of the Don’t-Ask-Don’t-Tell policy for possible mitigation.
4.	The Applicant’s proficiency, adherence to treatment, and forthrightness in questioning at the PAH all present positive aspects to his case.	

Based upon the Applicant’s forthright testimony and medical records, the Board determined that there was a logical connection between the Applicant’s anxiety and depression, and issues with his sexual identity, withdrawal from alcohol and Spice, and Spice related mood disorders.  Therefore, under liberal consideration the Board found that partial relief is warranted. 

    The Applicant contends that he was not provided adequate notice that the alleged use of Spice was proscribed by regulation and his alleged Spice use did not constitute a violation because he did not act within the requisite mens rea.

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’s service was 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.  In making its determination, the Board considered the totality of the Applicant’s service both his misconduct and overall active duty tenure of 31 months which included strong performance as a Telephone Systems Repair Technician.  The Board considered the Applicant’s contention that he was not provided adequate notice (i.e., 90 days) that Spice was proscribed by regulations.  Specifically, the Applicant’s alleged use of Spice in February 2010 was less than 90 days from the issue of MARFORPACO 5355.2 on 1 December 2009 which prohibited the use of Spice.  Additionally, the Board considered the Applicant’s contention that he did not act within the requisite mens rea, in that his command never proved he used Spice.  The Board rejected these contentions, as a review of the Applicant’s service record provided documentation that after consultation with defense counsel, the Applicant signed a Pre-Trial Agreement to plead guilty at Non-Judicial Punishment to violating paragraph 5(b) of the SECNAV Instruction 5300.28D dated 5 December 2005 by his unauthorized possession of drug paraphernalia and violating MARFORPACO 5355.2 by his unauthorized use of Spice.  The Board held that the Applicant’s agreement to plead guilty to drug paraphernalia possession and Spice use is evidence of his willful disobedience to regulations, and sufficient proof that he had actually used Spice.  Additionally, a review of the Applicant’s service medical records indicates that he was exposed to Spice during July 2009, well before February 2010.  Therefore, the Board found that the Applicant’s possession of drug paraphernalia and Spice in February 2010 constituted reckless conduct with regards to SECNAV Instruction 5300.28D paragraph 5(c), specifically, the unauthorized use of “designer drugs” to include the use of chemicals with the intent to induce intoxication as well as, reckless conduct towards MARFORPACO 5355.2.  As a result, the Board determined that there were appropriate regulations issued, the Applicant had ample notice of the illegality of Spice possession, and his reckless conduct is sufficient evidence of Spice use.  The Board commends the Applicant’s post-service conduct, to include his continued sobriety, continuous employment, and desire to serve.  These efforts along with the Applicant’s accountability and remorse for the misconduct committed while on active duty demonstrate the values and resilience the service seeks of their veterans.  In consideration for all these factors, and the misconduct, the Board determined that the misconduct was a significant negative aspect within his military career but it was partially mitigated by his mental health condition.  Consequently, the Board found a change in characterization of service to General (Under Honorable Conditions) is appropriate.

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 - COMMISSION OF A SERIOUS OFFENSE with a corresponding separation code of GKQ1, and the reentry code shall  RE-4B.  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.