ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20500115
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: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:			Active:		

Period of Service Under Review:
Date of Enlistment:  20070907	Age at Enlistment:  23
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20091222	Highest Rank/Rate:  Cpl
Length of Service:  02  Year(s)  03  Month(s)  16  Day(s)
Education Level:  12	AFQT:  57
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.1 (6)   Behavior/Conduct: 3.8 (6)   

Awards and Decorations (per DD 214):	Rifle  GCM SSDR(3) ICM(W/ 1 Bronze Star) GWOTSM GWOTEM COA LOA NDSM 

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

SCM:   SPCM:   CIVIL ARREST:   CC:  

NJP:  2

- 20080423:	Article 92 (Failure to obey order, regulation) 
	Awarded:       Suspended:      

- 20090821:	Article 92 (Failure to obey order, regulation) 
	Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)
	Awarded:       Suspended:      

Retention Warning Counseling:  2

- 20080507:	For operating a vehicle after consuming alcohol resulting in NJP.

- 20090821:	For driving under the influence of alcohol resulting in NJP. 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

   “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20010730 UNTIL 20050729”
	
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 Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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, Articles 92 and 111. 

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

Applicant’s Issues

1.	The Applicant seeks an upgrade in order to quality for service benefits.
2.	The Applicant contends his Mental Health condition was a contributing factor in his misconduct.

Discussion

Date:  20200806        Location:  WASHINGTON D.C.    Representation:  Veteran Service Organization

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 two deployment in support of Operation IRAQI FREEDOM.  The Applicant’s first deployment occurred during his first enlistment, but specific deployment dates could not be determined from the record.  The Applicant second deployment occurred from September 2008 to April 2009.  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 92 (Failure to obey order, regulation) 

Article 92 (Failure to obey order, regulation)
Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)

Based on the  committed by the Applicant, the command administratively processed him for separation.  When notified of administrative separation processing, the Applicant  their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.   

Issue 1:  The Applicant seeks an upgrade in order to quality for service benefits.  

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 and the equity of a discharge.  As such, this issue does not serve as basis upon which the NDRB can grant relief.

The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional guidance. 

Issue 2: The Applicant contends his Mental Health condition was a contributing 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.  

Regarding the standards for determining characterization of service, 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 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 support of his petition, the Applicant provided a personal statement, one character statement, and a Department of Veterans Affairs (VA) letter of November 2019 from a Licensed Independent Clinical Social Worker (LICSW).  In his personal statement, the Applicant discussed his service, his misconduct, and the difficulty that he experienced from his combat deployments.  The signed character statement from a Retired Master Sergeant indicated he knew the Applicant from his first enlistment and was aware that he rejoined the Marine Corps and deployed again.  The Master Sergeant further stated that the Applicant may have Post Traumatic Stress Disorder (PTSD), may have self-medicated, and this led to making bad decisions.  The Master Sergeant further accepts all of this as fact and recommends an Honorable characterization.  The LICSW letter stated the Applicant attended the REACH program in December 2017 to address substance abuse issues, Mental Health concerns, maladaptive leisure activities, housing issues, and employment deficits.  From this program, the Applicant struggled with his PTSD symptoms and he returned to the VA in Aug 2019 to continue psychotherapy treatment while he was placed into a transitional residence.  The LICSW described the Applicant’s PTSD symptoms as anxiety and panic attacks, intrusive memories, avoidance, hyper arousal, negative alterations in cognition and mood.  The LICSW further concluded the Applicant saw the traumas of war during his service and recommended an upgrade to his characterization of service.  

In review of the evidence of record, the NDRB found the Applicant served for a period of two years and three months of his four year service obligation.  He additionally has a previous period of Honorable service from 2001 to 2005 and a two year break in service from that period to the period that is under review.  During this period of service, the Applicant was subject to and found guilty at two NJPs for violations of Articles 92 (Two Specifications) and 111.  Specific circumstances surrounding these violations include reckless driving and operating a vehicle under the influence of alcohol; and operating a motorcycle without a license, insurance, and state registration.  He also struck another vehicle while operating this motorcycle and his Blood Alcohol Content was .14.  For this misconduct, the Applicant was advised of Administrative Separation (ADSEP) processing by reason of Pattern of Misconduct and Commission of a Serious Offense.  Upon notification he waived his rights and his Commanding Officer interviewed him during the ADSEP process.  The Commanding Officer’s ADSEP recommendation revealed that from his interview, the Applicant could not promise to stay out of trouble and wanted out of the Marine Corps as soon as possible.  The Regimental Commander concurred with the Commanding Officer’s assessment and recommendation, and he indicated that his command is trying to get him into intensive outpatient therapy for reasons that were not cited in the record.

The NDRB noted the Applicant completed two combat deployments to Iraq.  His first deployment occurred during his first enlistment and here, he served as an Engineer Equipment Mechanic.  His second deployment to Iraq occurred during this period of service and here, he served as an Infantryman.  The Applicant stated in his petition that he endured indirect fire during his first deployment and he was in a stressful vehicle commander billet during his second deployment.  The Applicant asserted that on return from his second deployment, he was experiencing anxiety, was stressed out, and got another Driving Under the Influence offense.  The Applicant’s official medical record noted he was experiencing insomnia and irritability following this deployment.  In August 2009, one month after the Applicant’s second NJP, he was referred to Mental Health, but no record of this evaluation was seen in the medical record.  

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included two NJPs.  However, the Applicant contends his Mental Health condition was a mitigating factor in his misconduct.  Although, the Applicant’s official military service record does not contain evidence of a Mental Health diagnosis, insomnia and irritability was reported after his second combat deployment and he was referred to Mental Health following his second NJP.  The Applicant’s ADSEP package also stated that was being referred to intensive outpatient therapy for unspecified reasons.  The NDRB opined that given this information and the post-service LICSW impressions, the Applicant potentially had and/or has a service connected Mental Health condition.  Furthermore, the NDRB opined that his potential undiagnosed condition does in some part mitigate his misconduct.  Given the unique circumstances of this case, the documented Mental Health information, and the Applicant’s two combat deployments, the NDRB determined that his petition warranted additional consideration in the determination of overall characterization of service.  While granting liberal consideration, the NDRB found that the awarded characterization of service was inequitable and that relief in the form of an upgrade in the characterization of service to General is warranted.  Full relief with a corresponding RE-code change was not granted as the NDRB did not find the Applicant’s undiagnosed Mental Health condition to be a sufficient mitigating reason to fully absolve him of his misconduct and enhance his reenlistment eligibility.

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 HKQ1, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures: If you believe the decision in your case is unclear, 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, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at http://boards.law.af.mil/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before 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.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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.

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  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.