, XXX-XX-, ex- SSgt, 

Current Discharge and Applicant’s Request

Application Received: 20201001
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (SERIOUS OFFENSE)
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:	 20090713 - 20170801  
			
Period of Service Under Review:
Date of Enlistment:  20170802	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20200827	Highest Rank/Rate:  SSgt
Length of Service:    Year(s)    Month(s) 25  Day(s)
Education Level:  	AFQT:  42
Deployment/Operation: 

Awards and Decorations (per DD 214):	Rifle  (3) Pistol  NMCAM (3) MUC GCM (3) NDSM GWOTSM SSDR CoC (2) LoA (5) MM 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214: 20190531 - 20190604, 5 days

SCM:   SPCM:   CIVIL ARREST:   CC:  

NJP:  

- 20200701:	Article 86 (Absence without leave, etc.) 
	Article 89 (Disrespect toward superior commissioned officer) X2
	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
	Awarded:    Suspended:   

Retention Warning Counseling:  

- 20190625:	For failing your Physical Fitness Test on 20190617.

- 20191126:	For failing your Combat Fitness Test on 20191126.

- 20200714:	For your NJP received on 20200701 for violation of Articles 86, 89, and 91 of the UCMJ.

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 20090713 UNTIL 20170801”

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 26 November 2013 until present.

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, Articles 86, 89, and 91. 

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

Applicant’s Issues

1.	The Applicant contends his discharge is inequitable because of his command’s maltreatment and disregard for his Mental Health.
2.	The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

Discussion

Date:  20210506      Location:  WASHINGTON D.C.   Representation:  

The Naval Discharge Review Board (NDRB), under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

As a result of the Applicant’s claim of a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  
Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave, etc.) 
Article 89 (Disrespect toward superior commissioned officer) (Two Specifications)
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)

Issue 1:  The Applicant contends his discharge is inequitable because of his command’s maltreatment and disregard for his Mental Health.

In support of this issue, the Applicant provided a personal statement in which he indicated that his command belittled, punished, and singled him out after he sought out Mental Health assistance.  The Applicant also stated that his Mental Health had a big impact on him and his family, and it affected his aspirations for continued service.  The Applicant further asserted that during his Mental Health treatment, he was approved for a medical retirement, yet his new command leadership circumvented this process.  

In a second personal statement, the Applicant discussed his struggles with recruiting duty and he quickly recognized it would not be a good fit for him.  Following some encouragement from his command, he continued to struggle and this led to the deterioration of his Mental Health and at least two suicidal ideations and/or attempts.  The Applicant added that during his period of Mental Health treatment, his command wanted him to take a Physical Fitness Test (PFT) and conduct his annual height and weight certification, but he told them he would not perform either and he was marked in an Unauthorized Absence status.  To further support this issue and the following issue, the Applicant provided four character statements, Congressional correspondence, documentation relating to an Inspector General complaint, excerpts of service and medical records, and private Mental Health and Department of Veterans Affairs (VA) records.  The NDRB noted the VA granted the Applicant a combined 90% service connected rating to which 70% was for a Major Depressive Disorder Diagnosis.

In review of the evidence of record, the NDRB found the Applicant has two previous periods of Honorable service.  This period of service that is subject to review is three years and 25 days.  During this period of service, the Applicant had recently completed an operational tour of duty and he was assigned to a recruiting command as a canvassing recruiter.  The Applicant’s fitness reports were assessed to be average, yet were while on recruiting duty, they were adverse.  Specific negative or adverse information associated with these reports were attributed to the Applicant’s physical fitness scores and his failure of height and weight standards.  The fitreps also cited the Applicant had not enlisted or shipped any potential recruits.  One fitness report additionally stated the Applicant was relieved for cause due to the good of the service and he did not accomplish any recruiting requirements.  In July 2020, the Applicant was subject to and found guilty at NJP for violation of Articles 86, 89 (Two Specifications), and 91.  These charges had originally taken place in May 2019 and they were initially preferred to a Special Court Martial (SPCM).  However, the Applicant agreed to a Pre-Trial Agreement in which he would plead guilty at his NJP and waive his Administrative Separation Board in exchange for the charges to not be referred to SPCM.  Specific to this misconduct, the Applicant displayed disrespect to a Commissioned Officer in context of being asked to perform a PFT and conduct an annual height and weight certification.  He also displayed disrespect to another Commissioned Officer and a Sergeant Major, and was found to be in an Unauthorized Absence status for a five day period after he was ordered to report in for the aforementioned requirements.  Following NJP, the Applicant was notified of ADSEP processing under the basis of Commission of a Serious Offense and the least favorable characterization of service that he may receive would be Under Other than Honorable Conditions.  Ultimately, the Separation Authority directed a favorable General (Under Honorable Conditions) characterization.  

In review of the Applicant’s medical record, the NDRB found that in January 2019, some four months prior to the Applicant’s misconduct, he experienced a suicidal ideation and was admitted to psychiatric care.  A period of hospitalization and treatment followed.  A competent military Mental Health authority diagnosed the Applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood.  The primary stressors associated with this diagnosis was found be an incongruence between the Applicant’s personal values and the requirements of recruiting duty.  The Applicant additionally reported not being supported by his unit.  In May 2019 and during the same month in which the misconduct occurred, the Applicant experienced another suicidal ideation and a Limited Duty Evaluation was initiated.  In April 2020, a Physical Evaluation Board (PEB) found the Applicant unfit and recommended him for the Temporary Disability Retirement List with a 70% rating for Major Depressive Disorder.

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.  

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 that his command mistreated him and disregarded his Mental Health, he provided insufficient evidence to support this contention and his statement alone is not enough to refute the presumption of regularity.  From review of the record, the NDRB reasoned his command was in some respects supportive of his Mental Health rehabilitation and his associated referral to the PEB process.  However, at or around this same time, the Applicant engaged in misconduct that was found to be deliberate and conscious decisions.  This misconduct was of such significance that charges were initially preferred to a SPCM.  Upon full review of this case, the NDRB found that his command acted appropriately in adjudicating punitive action for his misconduct; the command was supportive of his ongoing Mental Health treatment; and the Separation Authority fully considered the Applicant’s Mental Health and granted liberal consideration in determining discharge characterization.  Relief denied. 

Issue 2:  The Applicant contends his in-service and post-service conduct and achievement warrants consideration for an upgrade.

In support of this issue, the Applicant discussed his in-service achievements while indicating that his Mental Health affected himself and his family.  Since separation from service, the Applicant stated that he pursued a degree in social work, was appointed to a college government position, and is the president a veteran’s association.  The Applicant provided four character statements in support of this specific issue.

The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Additionally, the NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Following a thorough review of this case to include the documentation provided for post-service consideration, the NDRB determined the awarded characterization of service will remain as issued.  Relief denied.

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 (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.