ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20200604
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (DRUG ABUSE)
Authority for Discharge:   MARCORSEPMAN 6210.5 [DRUGS] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: SECRETARIAL AUTHORITY
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	 

Period of Service Under Review:
Date of Enlistment:  20100607	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100607	Highest Rank/Rate:  LCpl
Length of Service:  2  Year(s)  3  Month(s)  29  Day(s)
Education Level:  	AFQT:  64
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.4 (NFIR)   Behavior/Conduct: 4.4 (NFIR) 
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle (x2) Pistol  ACM CAR GWOTSM NDSM NATO SSDR 

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

SCM:      SPCM:      CIVIL ARREST:      CC:  

NJP:  

- 20120719:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded:     Suspended:  

Retention Warning Counseling:  

- 20120719:	For violation of Article 112a.

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).

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

Applicant’s Issues

1.	The Applicant contends his discharge was improper because his chain of command infringed upon his right by denying him an administrative separation hearing. 
2.	The Applicant contends his discharge is inequitable because his punishment for his misconduct was overly severe and not commensurate with his level of misconduct. 
3.    The Applicant contends his misconduct is mitigated by his post-traumatic stress disorder (PTSD) stemming from his combat service in Afghanistan. 

Discussion

Date:  20220225		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 September 2011 to April 2012 in support of Operation ENDURING FREEDOM.  Pursuant to § 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
.
:  The Applicant contends his discharge was improper because his chain of command infringed upon his right by denying him an administrative separation hearing. 

The Applicant seeks an upgraded discharge characterization because he feels his rights were infringed upon by his chain of command because he feels he was compelled to accept a Fast Track separation agreement thereby preventing him from appearing before an administrative separation board.  The record shows the Applicant was found guilty at NJP for violating Article 112a of the UCMJ.  As a result of being found guilty, the Applicant was subject to mandatory processing for administrative separation.  During his separation proceedings the Applicant voluntarily signed a Fast Track Agreement separation where he, as the accused, consented to enter a guilty plea at battalion NJP and to waive his right to an administrative separation board in exchange for his charges to not be referred to a Special Court Martial.  The Applicant contends his rights were not upheld prior to signing the agreement, because he was unaware of the fact that he would lose his ability appear before an administrative separation board to contest his charges.  After reviewing all the available information, the Board did not identify sufficient evidence to support the Applicant’s contention that his rights were violated.  The Applicant voluntarily agreed to accept a Fast Track Agreement which included a provision that he would waive his right to an administrative separation board.  Specifically, the Fast Track Agreement signed by the Applicant on 12 July 2012 states in paragraph 1a. “if the accused agrees to accept and plead guilty to the charges and specifications at battalion non-judicial punishment and waives his right to an administrative separation board the convening authority agrees to refer the charge to battalion NJP and not refer the charge to a Special Court Martial”.  Relief denied on this issue.

-3:  The Applicant contends his discharge is inequitable because his punishment for his misconduct was overly severe and not commensurate with his level of misconduct; and further contends his misconduct is mitigated by his post-traumatic stress disorder (PTSD) stemming from his combat service in Afghanistan. 

The Applicant seeks an upgraded discharge characterization because he feels his punishment was too harsh and not commensurate with his level of misconduct.  The record shows that on 25 June 2012 the Applicant submitted a urine sample for a post-leave urinalysis that contained 85 nanograms of THC.  This level of THC exceeded the allowable amount and put him in violation of Marine Corps drug policy.  The Applicant contends his discharge was inequitable because other servicemembers have been punished less harshly for similar misconduct.  The Board conducted a thorough examination of the record to determine what, if any, information could support the Applicant’s claim that his discharge is unduly severe.  The record shows the Applicant completed a deployment to Afghanistan, had average proficiency and conduct markings of 4.4/4.4, and had only one instance of misconduct.  

Further, 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	
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:	The Applicant’s medical record supports a mitigating nexus between the Applicant’s mental health and his misconduct.  	

The record shows the Applicant deployed to Afghanistan as part of Operation Enduring Freedom.  While on deployment the Applicant contends he encountered many highly stressful situations that forever changed his outlook and mood.  Additionally, he contends he was a first hand witness to the death and serious injury of fellow Marines.  The Applicant asserts these experiences brought about severe PTSD that led to his misconduct and separation. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included a nonjudicial punishment for violation of Article 112a of the UCMJ.  However, the Applicant’s official military service record contains a positive screening for PTSD.  This positive screening coupled with the Applicant’s testimony support his contention that his PTSD was a mitigating factor for his drug use.  

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.  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 Board found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  In making its determination, the Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct; presence of PTSD; the nexus between his drug use and his mental/emotional stability; and the severity of his conduct in relation to his discharge characterization.  To fully understand the circumstances surrounding the Applicant’s separation, the Board heard the Applicant’s testimony and examined his statement, evidence, Official Military Personnel File (OMPF), and solicited the opinion of a Navy physician.  Additionally, due to the Applicant’s claim of PTSD influencing his misconduct, and in accordance with the guidance published by the Hagel and Kurta Memos, the Board evaluated the facts of this case with liberal consideration.  The record shows the Applicant had consistently high proficiency and conduct marks to include 4.5 and 4.4 while he was deployed to Afghanistan.  Shortly upon his return from his deployment, the Applicant contends he began feeling the effects of PTSD leading him to turn to excessive amounts of alcohol to quell his problems.  Towards the conclusion of his post-deployment leave, the Applicant attended a party where he was handed a cigar with an unknown substance.  Although intoxicated, the Applicant stated he believed at the time the cigar had marijuana mixed in with the tobacco, but, do to his mental state continued to smoke the cigar until it was finished.  In concert with the Applicant’s testimony, the Board identified a letter in his OMPF from a Navy psychologist that stated he screened positive for PTSD to the point that he felt it mitigated his misconduct.  This medical opinion coupled with the Applicant’s combat deployment, instances of combat action, noteworthy performance leading up to his misconduct, and after applying liberal consideration to the facts of this case, the Board determined a reasonable nexus exists between his drug use and his PTSD.  Consequently, by a vote of 2-1 the Board found it appropriate to grant the Applicant’s request for an Honorable discharge. 

Further, the Board held that it is authorized to make a change to the narrative reason for discharge; reasserted (without necessarily repeating in this section) all the reasons stated above for warranting a change to the characterization of service, and summarized the following considerations concerning the change to the narrative reason for discharge.  Specifically, the Board held that the narrative reason for separation should be Secretarial Authority.  Again reasserting all the reasons stated above that supported the Board’s decision to warrant a change to the characterization of service, and in accordance with the principles of liberal consideration, the Board held that mitigation should also be given to the narrative reason for discharge.  In other words, the Board found that because the Applicant’s PTSD excused/mitigated the maliciousness/willful nature of the misconduct enough to warrant an upgrade to the characterization of service then it also rationally applied to the narrative reason for which the Applicant was discharged.  In essence, the Board found that the underlying narrative reason for the Applicant’s discharge is not misconduct, but the Applicant’s inability to continue to serve in the capacity needed for future naval service.  As such, the Board found that liberal consideration is warranted and that the Applicant’s overall service should be deemed Honorable with a narrative reason for discharge of Secretarial Authority.

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  HONORABLE, the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF, 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.