ex- FC2, 

Current Discharge and Applicant’s Request

Application Received: 20210928
Characterization of Service Received:   
Narrative Reason for Discharge:   IN LIEU OF TRIAL BY COURT MARTIAL
Authority for Discharge:   MILPERSMAN 1910-106 [IN LIEU OF TRIAL BY COURT-MARTIAL] 

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:  20011211	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080201	Highest Rank/Rate:  FC2
Length of Service:  06  Year(s)  01  Month(s)  21  Day(s)
Education Level:  12	AFQT:  99
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.0 (2)   Behavior/Conduct: 3.0 (2)   OTA: 3.30 
Fitness Reports: 

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

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

SCM:    SPCM:    CIVIL ARREST:   CC:     NJP:  NONE Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20091116
NDRB Documentary Review Docket Number:	ND09-00882
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	

Additional Statements

	From Applicant:		From/To Representation:		From/To Congress member:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560D), Change 11, effective 31 May 2005 until 10 November 2021, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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 that his overall in-service performance and conduct was honorable and warrants an upgrade.

Discussion

Date:  20230313		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 contends that his overall in-service performance and conduct was honorable and warrants an upgrade.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

Because the Applicant claimed mental health was a factor in their discharge, the Board reviewed the Applicant’s case in accordance with 10 U.S.C. § 1553, and pursuant to the Kurta Memo and other applicable regulations and guidance, including the Wilkie Memo.  Under the Kurta Memo, “[m]ental health conditions, including PTSD; sexual assault; and sexual harassment inherently affect one’s behaviors and choices causing veterans to think and behave differently than might otherwise be expected.”  Although, “[l]iberal consideration does not mandate an upgrade, [r]elief may be appropriate … for minor misconduct commonly associated with mental health conditions … and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.”  Additionally, “substance seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration.”  However, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”  Therefore, “Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.” See USD (P&R) Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” 25 August 2017 (“Kurta Memo”).

The review of discharges pursuant to the Kurta Memo and its other applicable regulations/guidance generally involves four questions: a) Did the veteran have a condition or experience that may excuse or mitigate the discharge; b) Did that condition exist/experience occur during military service; c) Does that condition or experience actually excuse or mitigate the discharge; and d) Does that condition or experience outweigh the discharge?  

In this case, the Board found that: a) the Applicant did not have a condition/experience that may excuse or mitigate the discharge; b) the condition did not exist during military service; c) the condition/experience did not mitigate the underlying basis/misconduct for the discharge; and d) the condition/experience did not outweigh the Applicant’s assigned Discharge Characterization.  

MEDICAL BOARD MEMBER OPINION
1.	Does the available record reasonably support a DSM mental/behavioral health condition, PTSD, TBI, or Sexual Trauma/Abuse/IPV existed at the time of the Applicant’s military service?	No	
2.	A.	Were these conditions present at time of misconduct?	Not applicable	
	B.	Were these conditions mitigating for the misconduct?	Not Applicable	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Separation Physical Exam not located
	
4.	Medical Board Member comments:	

Data includes:

PRIOR TO ENLISTMENT:

Education Level:  12

23 Apr 2001—MEPS: Normal Mental Status Examination.
Casual experimentation with Marijuana  >6 months ago acknowledged.  Gang activity denied.  Preservice ETOH or DRUG WAIVER NOT REQUIRED.

11 Dec 2001—ENLISTMENT:  Age at Enlistment:  18 yo.
 
14.From: 05JUN16  15.To: 06JUN15—FITREP:
ITR 3.17; MUST PROMOTE

14.From: 06JUN16  15.To: 07JUN15—FITREP:  
IRE:  3.43; continued to be a strong performer, motivated technician and good Sailor.
MUST PROMOTE

09 Jul 2007—NMC PORTSMOUTH AHLTA entry:  “preoperative exam” entry as part of a Series of visits for asymptomatic bulge diagnosed as RIGHT INGUINAL HERNIA.

~31 Jul 2007—likely date of R INGUINAL HERNIORRHAPHY.

29 Jan 2008—COM Carrier Strike Group Eight ltr:

“…you request separation in lieu of trial by     for violation of …Article 112a (wrongful use of marijuana)…request is approved…per [MILPERSMAN 1910-106…”

01 Feb 2008—DISCHARGE:  UNDER OTHER THAN HONORABLE CONDITIONS ; KFS; RE-4;  
Narrative Reason for Discharge:  (per DD 214) IN LIEU OF TRIAL BY COURT MARTIAL
Length of Service:  06  Year(s)  01  Month(s)  21  Day(s)
Performance/Proficiency: 3.0 (2)   Behavior/Conduct: 3.0 (2)   OTA: 3.30
ADMINISTRATIVELY REISSUED BYDIRECION OF THE COMMANDER NAVYPERSONNEL COMMAND: 1 JUNE2010
NO FURTHER ENTRIES

POST SEPARATION:  

16 Nov 2009—NDRB Documentary Review Conducted ND09-00882:	No change. 

COMMENT:  The Applicant presents with relatively terse documentation but providing testimony indicating a history of having been an intelligent high school graduate (“ace’d the ASVAB…scored 99 [AFQT], nearly qualifying for Nuclear Power School) but passively drifting into the Fire Control Rating.  After an initial period of adjustment, he acclimated to Navy culture forming a firm work ethic and “family” bond with his shipmates and earning complimentary Fitness Reports, literally, cruising along until popping positive for marijuana metabolite on an isolated, routine Urine Drug Screen (UDS) unit sweep in the context of having developed worries (but no overt symptoms of a medically boardable diagnostic entity)  as he’d been slow to apply for re-enlistment as his End of Active Obligated Service (EAOS) was approaching.  However, the isolated UDS for marijuana metabolite, resulted in a UOTH SILT discharge which has increasingly weighed upon him as he has matured over time and developed ambitions for higher level education, employment opportunities and family life, coming to increasingly regret his, apparently, isolated spontaneous foolish behavior.  He denied any medical or mental health related history, including significant medical or mental health related symptoms, evaluation or treatment except intermittent feelings of estrangement in adjusting to the differences between Navy and civilian cultures.  He denied having been subjected to abuse, including “hazing” during his active service.  No significant mental health related conditions were noted in the relatively sparse Service Treatment Record provided; and the only medical condition noted was a Right Inguinal Hernia for which a successful Herniorrhaphy was performed.      
Absent the, apparently, isolated UDS positive for marijuana metabolite, the Applicant would likely have successfully reenlisted and pursued a Navy career.  Accordingly, while a nexus between the Applicant’s misconduct and a psychological condition cannot be established based on the paucity of evidence, consideration of re-characterization of his discharge to GENERAL (UNDER HONORABLE CONDITIONS) is recommended as a matter of clemency due to the above and a positive post discharge adjustment.

Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of marijuana use is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  However, here, the command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.

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.  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 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 making its determination, the Board considered the totality of the Applicant’s service both his misconduct and also his overall service which included his enlistment Proficiency and Conduct marks of 3.0 and 3.0 and by his earning a Good Conduct Medal.  The Board also considered that his misconduct was a significant negative aspect within his military career but did not find that it rose to constitute a significant departure of military conduct in the context of his entire six-year career.  Additionally, the Board took note that the Applicant had no other misconduct in his near completion of his six-year obligation.  In consideration for all these factors, to include weighing the severity of the misconduct in relation to the assigned characterization/narrative for discharge, the Board determined that the unique circumstances of this case warranted relief primarily based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  Additionally, clemency is a general term for the administrative review or action, other than the correction of legal error, which results in mitigation, remission, or suspension of the whole or any part of the unexecuted portion of a court-martial sentence, restoration to duty, the voluntary retention on active duty beyond the obligated term of enlistment, or reenlistment.  Clemency also includes substitution for good cause an administrative discharge for an executed punitive discharge or dismissal in select cases.  Consequently, the Board found a change in characterization of service to General (Under Honorable Conditions) is appropriate.

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  IN LIEU OF TRIAL BY COURT MARTIAL with a corresponding separation code of KFS, and the reentry code shall  RE-4.  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.  (See www.va.gov/discharge-upgrade-instructions).  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, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost – including inpatient or crisis residential care for up to 30 days and outpatient care for up to 90 days.  Veterans do not need to be enrolled in the VA system to use this benefit.  In order 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 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.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost; you can use this benefit regardless of your discharge status, or enrollment in VA health care.  In order to find the nearest VA office to receive assistance, see Find your nearest VA medical center.