ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20200811
Characterization of Service Received:   
Narrative Reason for Discharge:   ENTRY LEVEL PERFORMANCE AND CONDUCT
Authority for Discharge:   MARCORSEPMAN 6205 [ENTRY LEVEL PERFORMANCE AND CONDUCT] 

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

Summary of Service
 
Prior Creditable Service:
Inactive:		             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20100315	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100729	Highest Rank/Rate:  Pvt
Length of Service:    Year(s)    Month(s)  15  Day(s)
Education Level:  	AFQT:  57
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.0 (NFIR)   Behavior/Conduct: 4.0 (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

NJP:      SCM:      SPCM:      CIVIL ARREST:      CC:  

Retention Warning Counseling:  

- 20100714:	For unacceptable behavior manifestations associated with Mental Health Conditions.  Specifically, you are informed that suicide attempts, suicide gestures, suicide ideations, and intentional self-inflicted injuries are strictly forbidden.

- 20100729:	For the diagnosis of your mental condition of Adjustment Disorder with Mixed Disturbance, Emotion, Anxiety and Conduct, which interferes with your duties, specifically, the inability to participate in rigorous exercises, conditioning hikes, and field duty.

NDRB Documentary Review Conducted (date):	20151014
NDRB Documentary Review Docket Number:	MD15-01084
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F effective 06 June 2007 UNTIL 25 November 2013, paragraph 6205, ENTRY LEVEL PERFORMANCE AND CONDUCT.

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 is improper because his chain of command denied him access to appropriate medical care to appropriately evaluate and diagnose his condition.
2.	The Applicant contends his discharge is inequitable because his alleged misconduct and performance decline were a direct result of his post-traumatic stress disorder stemming from military sexual trauma (MST), harassment, and threats from superiors.

Discussion

Date:  20220128		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 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.  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:

:  The Applicant contends his discharge is improper because his chain of command denied him access to appropriate medical care to appropriately evaluate and diagnose his condition.

The Applicant contends his discharge is improper because his chain of command denied him appropriate access to medical providers to evaluate and diagnose his deteriorating state of mental health.  Specifically, the Applicant states he received no help from any mental health professionals that were qualified to diagnose and treat the maladies that were afflicting him and that he had to seek help from non-military providers to address his problems.  The record shows multiple instances throughout the Applicant’s period of service where he was seen by competent military medical authority.  Additionally, on 29 July 2010, the Applicant underwent a comprehensive separation physical examination during which he interfaced the Camp Pendleton Area 52 Mental Health Staff.  

The NDRB 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.  Other than the Applicant’s statement indicating he was denied access to appropriate medical care, he provided insufficient evidence to support malice, neglect, or willful disregard by his chain of command when handling his health concerns.  Therefore, the Board concluded the command acted appropriately, equitably, and properly in processing the Applicant for separation.  

:  The Applicant contends his discharge is inequitable because his alleged misconduct and performance decline were a direct result of his post-traumatic stress disorder stemming from military sexual trauma (MST), harassment, and threats from superiors.  Further, the Applicant seeks an upgraded discharge characterization because he feels he was wrongfully and improperly discharged because his alleged misconduct was the result of instances of MST, harassment, and threats from superiors.

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 not have a condition/experience that mitigated the discharge; b) the condition did not exist 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?	No	
2.	A.	Were these conditions present at time of misconduct?	No	
	B.	Were these conditions mitigating for the misconduct?	Not Applicable	
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:	Overall, the enclosures and petition arguments ultimately proved unpersuasive in the face of the probative value within the active service record. The active service mental health record is granted significant weight given that: it reflects longitudinal observation and evaluation; is contemporaneous to the period of service; the evaluating provider had expertise in military duty expectations and disposition; and the provider communicated with the Applicant’s command regarding the outcome of the investigation regarding the allegations. Both the mental health record and the Commanding Officer’s separation recommendation reference an inability or unwillingness to adapt “evidenced by… continued misconduct”; PTSD was not diagnosed.	

The Applicant contends that his alleged misconduct and performance decline were the result of his PTSD that was brought about by instances of abuse, harassment, and MST while he was at boot camp.  Moreover, the Applicant feels his PTSD and mental anguish were not appropriately addressed by Navy medicine and were not taken into consideration during his separation proceedings.  The Board conducted a thorough examination of all the available information to identify what, if any, information could support the Applicant’s claim.  At the conclusion of its review, the Board did not discern sufficient evidence to support granting the Applicant’s request for an upgraded discharge characterization.  The Applicant served less than 180 days on active duty.  During this period of service, the Board did not identify any circumstances of personal conduct or performance that would warrant an Honorable discharge.  As a result, the Board concluded that an Uncharacterized discharge is the most appropriate characterization of service considering his length of service.  The record also shows the Applicant did not have any serious misconduct or nonjudicial punishments while on active duty.  The Board interpreted the absence of negative paperwork or formal punishments for misconduct as grounds to grant a changed Discharge Narrative to better capture his misconduct free period of service.  As a result, the Board voted unanimously to change the Applicant’s Discharge Narrative to Secretarial Authority.  
 
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.  An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted.  The Applicant had no misconduct that would rate an UOTHC discharge, and there was insufficient evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization.

Of note that in accordance with the Marine Corps Separation Manual (MARCORSEPMAN) with respect to non-service related administrative matters, i.e., Department of Veteran Affairs (DVA) benefits, civilian employment, etc., an uncharacterized separation shall be considered as the equivalent of an honorable or general, under honorable conditions characterization.

In this case, the Board found that an Uncharacterized discharge is warranted as the Applicant’s separation was initiated within the first 180 days of continuous active duty, and that his narrative reason should be Secretarial Authority.  In making its determination, the Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct; the state of his mental health at the time of his separation; the nexus between his performance and his mental/emotional stability; and the quality 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), medical record, and solicited the expert opinion of a Navy physician.  Additionally, due to the Applicant’s claim of MST and PTSD, and in accordance with the guidance published in the Hagel and Kurta Memos, the Board viewed the facts of this case with liberal consideration.  The Applicant contends that on multiple occasions he endured physical, verbal, and sexual abuse at boot camp.  He further claims this abuse brought about PTSD and other mental health conditions that had a lasting impact on him and his ability to conform to a military environment.  Upon arriving at the School Of Infantry for follow on training, the Applicant stated he sought help to address his problems but was denied access to medical providers by his chain of command.  This denial led the Applicant to refuse to train which in turn led to his administrative separation from the Marine Corps.  The Board thoroughly examined the record and did not identify sufficient information to support granting an upgraded discharge from Uncharacterized to Honorable due to his length of service.  The Board did, however, identify sufficient information to support changing his Discharge Narrative.  Specifically, the Board identified an instance where the Applicant was accused of being in an unauthorized absence status however there was no punishment or charge sheets in the record.  Outside of this information, the Board could not locate other evidence that would support his current Discharge Narrative.  Consequently, the Board unanimously agreed to change the Applicant’s Discharge Narrative to 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 the awarded characterization of service shall  UNCHARACTERIZED (ENTRY LEVEL SEPARATION), the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF, 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.