Current Discharge and Applicant’s Request

Application Received: 20201205
Characterization of Service Received:   
Narrative Reason for Discharge:   SECRETARIAL AUTHORITY
Authority for Discharge:   MARCORSEPMAN 6207 [HOMOSEXUAL CONDUCT] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20040608	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060207	Highest Rank/Rate:  LCpl
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  49
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.8 (NFIR)   Behavior/Conduct: 3.6 (NFIR)
Fitness Reports: 

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

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  20051201 - 20051231, 31 days

NJP:  

- 20060111:	Article 86 (Absence without leave, etc.) 
	Awarded:     Suspended:  

SCM:      SPCM:      CIVIL ARREST:      CC:  

Retention Warning Counseling:  

- 20050708:	For his Adjustment Disorder.

- 20060109:	For Homosexual Conduct in accordance with MCO P1900.16F para 6207 of the MARCORSEPMAN.  On or about 5 Jan 2006, you admitted to having engaged in or performing homosexual acts.

- 20060109:	For being UA.

NDRB Documentary Review Conducted (date):	20200831
NDRB Documentary Review Docket Number:	MD20-00422
NDRB Documentary Review Findings:		Change to Secretarial Authority

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 1 September 2001 until 5 June 2007, Paragraph 6207, HOMOSEXUAL 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 inequitable because his misconduct was a result of his youth and immaturity. 
2.	The Applicant contends his discharge is inequitable because his misconduct was a direct result of his, at the time, undiagnosed post-traumatic stress disorder (PTSD).

Discussion

Date:  20220126		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 March to October 2005 in support of Operation IRAQI FREEDOM.  Pursuant to § 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave, etc.) 

:  The Applicant contends his discharge is inequitable because his misconduct was a result of his youth and immaturity. 

The Applicant seeks an upgraded discharge characterization because he feels his youth and immaturity were contributing factors to his misconduct.  While the Applicant may feel his youth and immaturity were contributing factors to his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The NDRB acknowledges that many of our service members are young at the time they enlist for service, however, most still manage to serve honorably.  While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.  Relief denied.

:  The Applicant contends his discharge is inequitable because his misconduct was a direct result of his, at the time, undiagnosed post-traumatic stress disorder (PTSD).

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 have a condition/experience that mitigated the discharge; b) the condition did exist 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 – adjustment disorder in the military (based on pg. 11 counseling), VA record of PTSD diagnosis.	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	No	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Unknown – final physical not found	
4.	Medical board member comments:	Active duty, VA records, and the applicant’s testimony from the personal appearance hearing all considered.
- First review reversed DADT language from his record (changed from homosexual act to S/A with appropriate SEP code).  GEN discharge unchanged due to NJP for UA/DES x 31 days.  
- Newest review adds in VA diagnosis for PTSD dtd 29 Jul 2020, a diagnosis based on anxiety from recurrent and intrusive thoughts about traumatic deployment experiences.  AD record devoid of any information on the deployment (no pre/post health assessments), PTSD/TBI screens, or other supporting information.  VA records show a longstanding history of anxiety and suicide attempts, dating back to age 7.  
- Evidence from the OMPF shows a diagnosis for adjustment disorder in July 2004 (mid-way through the deployment).  I also specifically note the applicant’s suicidal ideation while on deployment, for which his access to weapons is taken away.
- Post-deployment, the member reports experiencing significant ostracization from his battalion.  He stated that he was screened by the Naval Hospital Camp Lejeune and denied leave because of concerns over his safety.  No record of post-deployment assessments can be found in any of the medical record systems to substantiate this claim.
- Applicant commences a 31-day UA/DES period in December 2004, claiming that he was seeking relief from the aforementioned loneliness and ostracization.  He also felt pressured by his unit’s upcoming (next) deployment, galvanizing his discharge attempts from the USMC.  These attempts included drug use and engaging in recorded homosexual conduct.

Opinion:
-	I do find evidence of service-connected worsening of pre-existing “anxiety and depressive disorders.”  No evidence supports self-treatment of PTSD symptoms as the reason for engaging in misconduct.  However, the applicant appears to have had few compensatory mechanisms to handle the stressors of deployment and appears to have felt an overwhelming desire to avoid having to deploy a second time.
-	Though thoroughly engaged with mental health resources, the applicant chose illicit means (one of which has since been disregarded) to expedite a discharge from the Marine Corps ahead of a second deployment.
-	A credible nexus exists between the applicant’s feeling of social isolation and his various acts of misconduct in December 2004.
-	The Marine Corps did not use the UA/DES as a reason for the applicant’s separation, only his violation of the DADT policy.
Given a credible nexus of worsened anxiety and depression, proficiency and conduct marks above the level deemed necessary for an honorable discharge, and the lack of emphasis by the USMC placed on the misconduct, I recommend liberal consideration for this applicant’s characterization of discharge.	

The Applicant contends the state of his mental health was so severely impacted by his deployment to Operation Iraqi Freedom that it changed the course of his enlistment and led to his administrative separation.  While deployed the Applicant lost a close friend and endured persistent stressors associated with combat operations.  The Applicant stated that his condition worsened with each day to the point that he made a suicidal gesture by placing the muzzle of his service rifle against his forehead while contemplating pulling the trigger.  Although the Applicant did not pull the trigger, he was identified as having a suicidal ideation and had his weapon removed from his custody.  Upon returning from deployment the Applicant was notified his unit was scheduled to deploy to Iraq again in less than a year’s time.  The Applicant related that this information coupled with his being ostracized by his unit due to his mental health issues pushed him to go on an unauthorized absence (UA) period for 30 days.  Once he returned to his command he was punished but not separated for his misconduct.  Around the time he returned from his period of UA as his mental health was worsening the Applicant came forward and divulged that he had engaged in an, at the time, improper relationship with another male.  This admission, and not his period of unauthorized absence, led to his administrative separation from the Marine Corps.  In the aggregate, the Applicant maintains both acts were a direct result of his PTSD and inability to cope with his combat experience.  The Board conducted a thorough examination of the Applicant’s medical records and did not find credible evidence of a PTSD diagnosis while on active duty.  However, the Board did discern sufficient evidence of a nexus between his conduct and his worsened anxiety and depression.  The Board evaluated the Applicant’s unauthorized absence period through the lens of liberal consideration and concluded that although this act was a serious transgression against good order and discipline, it is mitigated by the evidence enclosed in the record.  

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.  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.  

After viewing the facts of this case through the lens of liberal consideration, 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; his mental health diagnosis; the nexus between his misconduct 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 his testimony, examined his statement, evidence, Official Military Personnel File (OMPF), medical records, and solicited the opinion of a Navy physician.  Additionally, due to the Applicant’s claim of a mental health condition at the time of his discharge, 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 his time in the service got off to a rocky start that was only made worse during his deployment to Operation Iraqi Freedom.  While deployed, the Applicant contends his mental health declined significantly to the point that he became suicidal.  Upon returning from deployment the Applicant’s mental health remained impaired and only degraded further when he received word he would deploy again to Iraq in less than a years’ time.  This led the Applicant to go UA for 30 days.  The Applicant was ultimately punished for his period of UA but was not processed for administrative separation until he divulged that he had had an, at the time, improper relationship with another man.  Although his discharge narrative was corrected during his previous document review, the Applicant maintains that his General (Under Honorable Conditions) discharge is inequitable because he was suffering from PTSD.  The Board found clear evidence that his thinking and actions were heavily influence by his mental health diagnoses of anxiety and depression.  When evaluating all the facts together, the Board finds sufficient evidence of a mental health condition that existed during the time of his misconduct that mitigates severity of the offense.  Consequently, the Board voted unanimously to upgrade the Applicant’s discharge to Honorable. 

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 JFF1, 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 ApplicaApplicant nt 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.