Current Discharge and Applicant’s Request

Application Received: 20191008
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20050711	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090313	Highest Rank/Rate:  LCpl
Length of Service:  03  Year(s)  02  Month(s)  15  Day(s)
Education Level:  12	AFQT:  36
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.1 (8)   Behavior/Conduct: 2.7 (8)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  ICM SSDR GWOTSM NDSM NUC 

Period of CONF:  20081210 - 20090108, 29 days
Other Time Lost per DD214:  20071220 - 20080123, 35 days	20070806-20071219 136

SPCM:    CIVIL ARREST:   CC:   
	
NJP:  4

- 20080625:	Article 86 (Absence without leave, etc.) 
	Awarded: RESTR EPD FOP   Suspended:  FOP  

- 20081003:	Article 86 (Absence without leave, etc.) 
	Awarded: RIR RESTR EPD FOP   Suspended:  NONE  

- 20081009:	Article 92 (Failure to obey order, regulation) 
	Awarded: NFIR  Suspended:  NFIR

- 20081031:	Article 86 (Absence without leave, etc.) 20081028-20081029, 1 day
	Awarded: RESTR for 60 days FOP (2 months)   Suspended:  FOP (1 month)  

SCM:  1

- 20080211:	Article 86 (Absence without leave, etc.) 20070806-20071217, 136 days
	Sentence: CONF 30 days (Dates NFIR) RIR E-2
	CA: The sentence is approved and ordered executed.

Retention Warning Counseling:  4

- 20061210:	For lack of leadership and poor judgment by violating Article 121 of the UCMJ. 

- 20081117:	For battalion level NJP for violation of articles 86, absent without leave. 

- 20081009:	For battalion level NJP for violation of articles 86, absent without leave.   

- 20081023:	For battalion level NJP for violation of article 92, of the UCMJ.   

NDRB Documentary Review Conducted (date):	20150820
NDRB Documentary Review Docket Number:	MD15-01122
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:

	  “(136) 20070806-20071219, (35) 20071220-20080123; (29) 20081210 – 20090108’

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 6210.6, 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 86.  

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

Applicant’s Issues

1.	The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct.

Discussion

Date:  20220316		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 July 2006 to March 2007 in support of Operation IRAQI 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 86 (Absence without leave, etc.) 
Article 92 (Failure to obey order, regulation)

  for  of the UCMJ:  
Article 86 (Absence without leave, etc.) 

Issue 1.	The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in 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.  

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included four retention warnings, four nonjudicial punishments for numerous instances of unauthorized absence and breaking an order or regulation, and a Summary Court-Martial for unauthorized absence; this was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his Mental Health Diagnosis was a mitigating factor in his misconduct.  The Applicant’s official military service record diagnosis of a Mental Health Diagnosis, coupled with additional post-service documentation provided by the Applicant, support the Applicant’s contention that his Mental Health Diagnosis was a mitigating factor associated with the in-service misconduct.  Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented Mental Health Diagnosis, and the Applicant’s service in combat, warranted additional consideration in the determination of overall characterization of service.  

Though the Applicant may feel that a Mental Health Diagnosis was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the Mental Health Diagnosis was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that a Mental Health Diagnosis did not mitigate the Applicant’s misconduct. The NDRB noted that the Applicant was identified as having mental health issues and had numerous misconduct issues prior to his deployment to Iraq. The NDRB determined that PTSD was not a mitigating factor in the Applicant’s significant and persistent misconduct.

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 did not mitigate the underlying basis/misconduct for the discharge; and d) the condition/experience did not outweigh 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	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	No	
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:	Second review of this case.  First review focused on applicant’s perception of prejudicial treatment from his command due to his ongoing care for combat-related issues.  Relief was denied.

This review centers on the applicant’s claim of untreated PTSD as a mitigating factor in his misconduct and command indifference in helping him seek treatment.  Reviewed the applicant’s military treatment records, civilian treatment records (2018 – Columbia Wellness unsigned treatment plan notes), and applicant’s testimony at a personal appearance hearing.

Notes:
•	The applicant deployed to OIF from June of 2006 – March 2007.
•	PDHA/PDHRA from the deployment note residual PTS-like symptoms, corroborated by an initial visit to the PDHRA Clinic in Jun 2007.  At that visit, applicant’s staff NCO reported to the psychologist that the applicant’s “irresponsible” behavior was chronic and predated the deployment.  Other notes:
o	The patient was encouraged to attend the Combat Stress Workshop located on at the Counseling Services Branch on the mainside of Camp Pendleton 
o	Inquire with his unit medical officer about a short-course of sleep medication.  
o	Diagnosed with Adjustment Disorder.  
o	PTSD diagnosis considered but the psychologist felt that the patient did not meet criteria.  
•	A gap appears in AHLTA medical visits (for any reason) between June 2007–April 2008.  Hardcopy medical records weren’t available for review, which would have reflected visits to his unit medical department.  AWOL dates: 08/06/2007-12/17/2007 and then 12/20/2007 – 1/23/2008.
•	05 May 2008 – 1st visit with Camp Pendleton Mental Health.  Diagnosis of anxiety disorder.  PCL-M administered – applicant scored 39 (below PTSD cutoff of 50).
•	Visits in May – jump to August – then regular until discharge.
•	October 2008 – first use of the diagnosis of PTSD.  PCL-M re-administered – score of 60 recorded.

While a diagnosis for PTSD is found in the record, I do not see a mitigating nexus between this applicant’s misconduct and his mental health diagnosis.  The record reflects that the applicant was quickly identified as having mental health issues (even before leaving Iraq), directed to treatment (within a few months of returning from Iraq), and was offered sufficient treatment (evidenced by the frequent visits to the PDHRA clinic).  Most of the eleven-month gap in treatment comes as a result of the applicant’s substantial periods of UA (~4-5 months) and their legal consequences.  The record and the applicant’s personal appearance hearing tend to indicate more of a pattern of a Marine whose conduct issues likely preceded deployment.  These included chronic tardiness/absences, difficulties operating within his chain of command, a difficulties accepting responsibilities for his own actions.  	

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  MISCONDUCT with a corresponding separation code of HKQ1, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

ADDENDUM:  Information for the Applicant

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.