Current Discharge and Applicant’s Request

Application Received: 20210208
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:	 20131209 - 20170726  

Period of Service Under Review:
Date of Enlistment:  20170727	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20200626	Highest Rank/Rate:  Sgt
Length of Service:    Year(s)  06  Month(s)  18  Day(s)
Education Level:  	AFQT:  42
Deployment/Operation: 

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

Awards and Decorations (per DD 214):	Rifle  (x3) NMCAM GCM NDSM GWOTSM SSDR CoC MM (x2) 

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

SCM:      SPCM:      CIVIL ARREST:      CC:  

NJP:  

- 20191009:	Article 92 (Failure to obey order, regulation) 
	Article 107 (False official statements)
	Article 131 (Perjury)
	Awarded:     Suspended:  

Retention Warning Counseling:  

- 20191010:	For violation of Articles 92, 107 and 131.

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, Article 92, 107.  

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

Applicant’s Issues

1.	The Applicant contends he warrants an upgrade based on his in-service conduct. 
2.	The Applicant contends his discharge was unjust because his due process rights were violated.
3.	Board Issue for a change to the Narrative Reason for Discharge.

Discussion

Date:  20220411		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.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 92 (Failure to obey order, regulation) 
Article 107 (False official statements)
Article 131 (Perjury)

Issue 1.	The Applicant contends he warrants an upgrade based on his in-service conduct. 

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 Applicant states his character is demonstrated by promotion to Sergeant and a Good Conduct Medal.  The Applicant was administratively separated; not separated upon expiration of enlistment or fulfillment of service obligation.  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.  The Board noted that the Applicant had no other misconduct in the entirety of his career, which spanned over 6 and-a-half years. The Applicant had numerous laudatory comments within his fitness reports and immediate chain of command spoke well of him, recommending him for promotions and higher billets.

Issue 2.	The Applicant contends his discharge was unjust because his due process rights were violated.

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 Board considered the Applicant contention that the separation authority violated the Marine Corps Separations Manual (MARCORSEPMAN) by disregarding the Applicant’s Administrative Separation Board’s (ASB) determination.  The Applicant’s ASB recommended that the Applicant be retained.  Nonetheless, the Separation Authority disagreed with the ASB, and believed an Under Other than Honorable (UOTH) discharge was the more appropriate characterization.  However, a review of MARCORSEPMAN ¶ 6309 (2)(a) shows that a separation authority cannot assign a more unfavorable discharge than recommended by the ASB.  More specifically, if the ASB “finds that a preponderance of the evidence supports one or more of the alleged reasons for separation and recommends separation” then the separation authority can: i) approve the ASB determination in its entirety; ii) approve the separation but “change the recommended characterization of service [and description] to one more favorable”; iii) initiate or suspend the Service Member’s separation; or even iv) retain the Service Member.  Reviewing this regulatory guidance further, if the ASB “finds that a preponderance of the evidence supports one or more of the alleged reasons for separation, but then recommends retention, the separation authority” can: i) approve the ASB determination in its entirety; ii) permit the Service Member to transfer to the FMCR/Retired List, or iii) submit “the case to the Secretary of the Navy recommending separation for one of the specific reasons which the[ASB] board found supported by the preponderance of the evidence [but] with a characterization of service as honorable or general (under honorable conditions).”  Similarly, if “the [ASB] board finds that a preponderance of the evidence does not support one or more of the reasons for separation alleged and recommends retention, the separation authority may” i) approve the ASB determination in its entirety; ii) permit the Service Member to transfer to the FMCR/Retired List, or iii) submit the case to the Secretary of the Navy recommending separation, “if the findings of the [ASB] board are clearly contrary to the substantial weight of the evidence in the record.”  However, “the basis for [the Service Member’s] separation will be paragraph 6214” (Separation in the Best Interest of the Service).  Under Paragraph 6214, the “Secretary may use this secretarial plenary authority” to separate a Service Member but the “[c]haracterization of service will be honorable or general (under honorable conditions).” ¶ 6214(5).

Further, the Applicant claims that his due process rights were violated when the command decided not to take him to trial and instead decided to take him to nonjudicial punishment. It is the commands decision to take a servicemember to trial or not. In this case the command decided to administratively separate the Applicant the nonjudicial route. The Applicant did have the right to deny nonjudicial punishment and request a trial by court-martial and chose not to. Ultimately the Applicant was found guilty at nonjudicial punishment and went to a separations board.

In this case, the Board found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  In making its determination, the Board considered the Applicant’s total service and misconduct committed. While the Board found no impropriety with the commands decision to take the Applicant to nonjudicial punishment, the Board did find some unique characteristics that were of concern. The Board did notice that the Applicant was subject to a 706 investigation during this process. This investigation is used to determine if a servicemember is mentally fit to stand trial at a Special or General Court-Martial. This indicates that the command had an eye for trial at some point during the separation process. However, the Applicant was never the subject of a court-martial. This leads us to believe that there was not enough evidence to convict the Applicant at a trial by court-martial. As well, the Applicant was charged with perjury but never had the opportunity to perjure himself. He was never taken to a trial by court-martial and never swore under oath to a grand jury. This lead the Board to question the validity of this perjury charge. The Board also noted that during the administrative separations board, the board voted unanimously to retain the Applicant. The Command ultimately disagreed with the administrative separations board and separated the Applicant with an Other than Honorable discharge. During this board process, the Applicant had numerous individuals, from the rank of Lance Corporal up to Captain, speak highly of him and recommended that he be retained in the Marine Corps. The NDRB believes that if the command followed the recommendation of the administrative separations board, the Applicant would have been able to remain in the Marine Corps with no further misconduct. This would have allowed him to compete for reenlistment and ultimately separate from the service with an Honorable discharge. The NDRB did determine that the nonjudicial punishment was proper and that the Applicant did violate the UCMJ. However, the NDRB determined that the command acted unjustly by having an eye for trial and then ultimately deciding on nonjudicial punishment, charging the Applicant with perjury, and disregarding the recommendations of the separations board.  Consequently, the Board held the Applicant’s discharge should be re-characterized to honorable with a commensurate narrative reason for discharge of Secretarial Authority.  

Issue 3: Board Issue for a change to the Narrative Reason for Discharge.

The Board found a change to the Narrative Reason for Separation to Secretarial Authority was authorized and warranted.  The NDRB has broad authority to review Department of the Navy discharges.  In accordance with SECNAVMAN 5420.1, ¶ 214 (Review on Motion of the NDRB) the NDRB may initiate a Discharge Review even without an Applicant’s request up until the discharge date exceeds 15 years.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis, and if such a review reveals an impropriety or inequity, relief is in order.  Further, the NDRB does not require an applicant to make an express or implied contention; specifically, under ¶ 211 (Applications) an “applicant is encouraged, but not required, to identify an issue or issues as pertaining to the propriety or the equity of the discharge.” Thus, under ¶ 212 (Procedural Rights of the Applicant) the NDRB will consider that a request for review from an applicant who does not have an Honorable Discharge will be treated as a request for a change to an Honorable Discharge.  Similarly, an applicant may request a specific change in the narrative reason for separation.  If an applicant does not request a specific change in the reason for discharge, the Board will presume that the request for review does not involve a request for change in the reason for discharge.  However, this presumption does not waive “the NDRB’s responsibility to examine the propriety and equity of an applicant’s discharge, the NDRB will change the reason for discharge if such a change is warranted.”  Although highlighting the NDRB’s authority to review and change the narrative reason for discharge, the Board noted that “an applicant may not receive a less favorable discharge than that issued at the time of separation.” ¶ 207 (Objective of Review). 

Consequently, the Board held that it is authorized to make a change to the narrative reason for discharge; reasserted (without necessarily repeating in this section) all the reasons stated above for warranting a change to the characterization of service, and summarized the following considerations concerning the change to the narrative reason for discharge.  Specifically, the Board held that the narrative reason for separation should be Secretarial Authority.  Again reasserting all the reasons stated above that supported the Board’s decision to warrant a change to the characterization of service, and in accordance with the principles of liberal consideration, the Board held that mitigation should also be given to the narrative reason for discharge.  In other words, the Board found that because the Applicant’s Mental Health excused/mitigated the maliciousness/willful nature of the misconduct enough to warrant an upgrade to the characterization of service then it also rationally applied to the narrative reason for which the Applicant was discharged.  In essence, the Board found that the underlying narrative reason for the Applicant’s discharge is not misconduct, but the Applicant’s inability to continue to serve in the capacity needed for the Service to fight battles and win wars.  As such, the Board found that the Applicant’s DD214 should reflect in its entirety, honorable service to our nation.  Therefore, stating in the simplest of terms, the Board held the Applicant’s overall service should be deemed honorable with a commensurate narrative reason for discharge.  

Consequently, by a unanimous vote, the Board found an upgrade in characterization of service to Honorable was appropriate with a commensurate narrative reason for separation of Secretarial Authority.  The Board held that the narrative reason for separation should be Secretarial Authority as the Board found that the underlying narrative reason for the Applicant’s discharge is not misconduct as defined by regulations but rather the Applicant was separated under Secretarial Authority (Best Interest of the Service.  As such, the Board found that the Applicant’s DD214 should reflect in its entirety, honorable service to our nation.  Therefore, stating in the simplest of terms, the Board held the Applicant’s overall service should be deemed honorable with a commensurate narrative reason for discharge.  Relief Granted. 

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 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

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.