ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received:  20211029
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:  SECRETARIAL AUTHORITY
Reentry Code change to:  NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:   	            	Active:   20050607 - 20190916  

Period of Service Under Review:
Date of Enlistment:  20190917	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20210708	Highest Rank/Rate:  GySgt
Length of Service:  16  Year(s)  01  Month(s)  02  Day(s)
Education Level:  12	AFQT:  63
Deployment/Operation:   ; 

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

Awards and Decorations (per DD 214):	Rifle  (3) Pistol  NMCCM PUC NUC NMUC GCM (5) NDSM ACM (w/1 Star) ICM (w/1 Star) GWOTEM GWOTSM SSDR (5) MCR NATO CoC (3) MM (2) 

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

SCM:    SPCM:    CIVIL ARREST:    CC:   

NJP:  1

- 20201103:	Article 92 (Failure to obey order, regulation) x3
	Article 120a (Stalking)
	Awarded:   
	Suspended:  RESTR EPD

Retention Warning Counseling:  2

- 20201103:	For violation of Articles 92 x3 and 120a. 

- 20210628:	For being informed by the Commanding Officer that SNM will be receiving a re-enlistment code of RE-4 and a separation code of GKQ1.

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 and 120a.

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

Applicant’s Issues

1.	The Applicant contends his mental health condition, post-traumatic stress disorder (PTSD), and traumatic brain injury (TBI) were mitigating factors in his misconduct.
2.	The Applicant contends his due process rights were violated because his mental health condition was not take into consideration during ADSEP proceedings.
3.	The Applicant contends his administrative separation (ADSEP) board (ASB) was improper.

Discussion

Date:  20220808	 (VTC)	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 September 2006 to April 2007, April 2008 to October 2008, and December 2009 to March 2010 in support of Operation IRAQI FREEDOM and from December 2009 to March 2010 in support of Operation ENDURING 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 92 (Failure to obey order, regulation) 
Article 120a (Stalking)

Issue 1:  The Applicant contends his mental health condition, PTSD, and TBI were mitigating factors in his misconduct.

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

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 may have excused/mitigated the discharge; b) the condition existed during military service; c) but 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 PTSD (or other boarded mental health condition) existed at the time of applicant’s military service?	Yes – PTSD, adjustment disorder, TBI (military); PTSD (VA)	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	No (see below)	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Yes	
4.	Medical board member comments:	Reviewed the Applicant’s treatment and service records in addition to personal appearance testimony on 09 August 2022.

The Applicant contends (in part) that PTSD/mTBI mitigates his misconduct.

Specific comments:

The Applicant deployed three times from 2006 to 2010 in support of Operations Iraqi and Enduring Freedom.  Evidence from PDHAs/PDHRAs, focused evaluations from 2009 to 2013, and the Applicant’s testimony show evidence of post-traumatic stress in the form of hypervigilance, mood swings, avoidance behavior, sleep disturbances/nightmares (temporarily), and increased risk-taking behavior.  The latest date for diagnosis and treatment of PTSD was in January 2013.

The Applicant also endured non-combat related head trauma in 2009 during a training exercise.  Follow-up from various military and civilian medical reports showed significant post-concussive symptoms (e.g. peritraumatic amnesia, light sensitivity, etc.) and a solitary long term sequela (headaches) lasting through discharge.  In his testimony, the Applicant endorsed personality changes (less introversion, aggressiveness) as related by friends and coworkers.  The latest for diagnosis and treatment of TBI (other than routine follow-up for headaches) was in May 2019.  The neurologist noted the likely presence of migraine headaches and the existence of comorbid anxiety/depression and psychological stressors.

Enclosures (4) and (5) on the letter “FIRST ENDORSEMENT of Admin Discharge Bd rpt 1910 SenMr of 31 March 21” (dated 10 May 2021) reference “PTSD/TBI Evaluations” and “Final Physical” as part of the administrative discharge package.  I was unable to locate these specific attachments within the OMPF so I am unable to comment on the contents, though I find it likely they reflect the medical requirements for separation (DD 2807, 2808, PTSD/TBI evaluation, VA counseling, etc.).   As stated in the endorsement letter, these documents were considered in the discharge of the Applicant.

Review of visits contemporary to the discharge, I did find the Applicant was engaged in psychotherapy.  In October 2020, the Applicant attended his numerical 22nd (and last) psychotherapy appointment.  Per the records, the Applicant’s primary concern during these sessions was “mood dysregulation.”  The DSM-V diagnosis given by the psychologist was Adjustment Disorder with Mixed Anxiety and Depressed Mood.  This visit was the last noted mental health visit of any kind reflected in the electronic record.

Since the record does not contain the contents of the PTSD/TBI evaluation and the Applicant had diagnosed PTSD/TBI in his record, I conducted an independent analysis based on the medical and service records and the Applicant’s testimony.  Briefly, these are my conclusions:

1.	I concur with the diagnosis of PTSD.  Evidence from multiple sources points to significant post-deployment impairment based on combat-related experiences.  Probably the most applicable symptom of the PTSD in this cases was increased risk taking behavior.
2.	I concur with the diagnosis of traumatic brain injury.  However, with the exception of probably post-traumatic headaches, I was unable to find evidence of longer-term sequelae that might have existed at the time of the misconduct.  While personality changes (generally lasting years) have been noted in persons with significant TBI, I lack the information to confirm this phenomenon in this case.
3.	Reading through the twenty-two psychotherapy appointments (March – October 2020), the focus on the sessions resolves primarily interpersonal and occupational/legal stressors (e.g., anger with the command for revealing his sexual orientation, anxiety from ongoing command investigation, etc.).  I find it reasonable that the Applicant experiences these symptoms in the setting of possible career-ending misconduct.  I did not find mention of significant PTSD or TBI-like symptoms with the exception of the aforementioned headaches.
4.	Lastly, in evaluating the misconduct, I find much of the evidence suggests premeditation and the use (abuse) of seniority to further primarily sexual desires.  The sheer volume of evidence (from multiple persons) suggests repeated and dedicated efforts to obtain sexual gratification from junior Marines.  The Applicant’s seniority, 16-year experience, and training (specifically SAPR) all suggest that he knew the regulations for appropriate conduct and chose to abuse his position of authority.

Based on the above, I do not find a mitigating nexus between the Applicant’s mental and neurologic health conditions and his misconduct.
As stipulated in the Kurta memo, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI…”
While I cannot determine the degree to which PTSD and TBI were considered, I do not find grounds that the discharge process (ASB or Separation Authority action) would have been significantly altered by the presence of these two diagnoses.	

More specifically, the Board found that there was insufficient evidence to show that the Applicant’s PTSD/TBI/Mental Health was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions.  After an exhaustive review, the NDRB determined that PTSD/TBI did not mitigate the Applicant’s misconduct.  As noted in the Medical Office’s detailed write up, the NDRB found evidence of a mental health condition, stemming from PTSD and TBI, linked to multiple combat deployments and a stateside training incident.  However, the Board found the Applicant’s misconduct calculated/premediated in nature and considered it a gross lack of judgement based on his seniority, 16-year military experience and training (to include the Command’s Sexual Assault Response Coordinator (SAPR)) and positional authority as an instructor for junior Marines.  Further, the sheer volume of evidence (from multiple alleged victims) suggested repeated and dedicated efforts by the Applicant to obtain sexual gratification from his junior Marines.  Although the Applicant may feel that a Mental Health Diagnosis was the underlying cause of his misconduct, the record reflected willful transgressions that demonstrated he was unfit for further service.  After a thorough review, the NDRB determined that a Mental Health Diagnosis, stemming from PTSD and TBI, did not mitigate the Applicant’s misconduct.

Issue 2:  The Applicant contends his due process rights were violated because his mental health condition was not take into consideration during ADSEP proceedings.

Regarding the Applicant’s contention his due process rights were violated because his mental health condition was not take into consideration during ADSEP proceedings, the Board first considered this contention in arguendo was true.  Thus, the NDRB then retroactively applied how the ASB would have applied liberal consideration that the Applicant’s PTSD/TBI potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The NDRB found that the clear and rational result would be as clearly outlined above in Issue 1.  In other words, there is no rational nexus between the Applicant’s repeated and dedicated efforts to obtain sexual gratification from his junior Marines and his PTSD/TBI.  

Secondly, 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.  Upon review and thorough consideration by the Board, the Board found there is insufficient evidence in the record, nor did the Applicant produced sufficient documented evidence for the NDRB’s consideration to support the contention the Applicant deserves an upgrade in characterization based on an improperly conducted ADSEP.  

Issue 3:  The Applicant contends his administrative separation (ADSEP) board (ASB) was improper.  

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.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  Upon review and thorough consideration by the Board, the Board found there is insufficient evidence in the record to support the contention the Applicant deserves an upgrade in characterization based on an improperly conducted ADSEP.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Considering the Applicant’s contention in detail, the Board first noted the Applicant was taken to NJP on 3 November 2020 and found guilty of violating multiple specifications of UCMJ Articles 92, and Article 120a for fraternizing, sexually harassing, having inappropriate relationships and prohibited activities with trainees, and for abusive sexual contact with trainees as an instructor.  An investigation was initiated on 21 October 2019, when one of the Applicant’s junior Marines reported/accused the Applicant of inappropriately touching him and for unsuitable conversations related to sexual preferences and activities.  The alleged victim further stated the Applicant had shown him images and videos of the Applicant engaged in sexual activities with male partners.  During the course of the CID investigation, numerous other junior Marines from the unit came forward to accuse the Applicant of similar activities and conversations.  A permissive search of the junior Marines’ phones and social media accounts unveiled messages from the Applicant that corroborated the alleged victims’ statements.  The NDRB noted the record of investigation (ROI) and message details (evidence) are available/documented within the Applicant’s OMPF.  The Board also considered the Applicant admitted during his hearing that he engaged in inappropriate message conversations, but denied touching, asking and or engaging in sexual activities, or showing inappropriate pictures or videos to his junior Marines.

Following his NJP and ROI, the Applicant was notified of ADSEP proceedings on 30 November 2020; he subsequently exercised his right to an ASB and with qualified counsel.  His ASB convened on 31 March 2021, where the ASB found by majority rule that the preponderance of evidence supported the basis for separation and recommended separation from the Marine Corps with an Under Other Than Honorable Conditions discharge.  Of note, a minority report was filed and included in the ASB findings where the senior enlisted board member found that the preponderance of the evidence supported the basis for fraternization, sexual harassment, and prohibited activities under Article 92, but did not support Article 120a for abusive sexual contact.  

Following the ASB, the Applicant’s counsel filed a comprehensive letter of deficiency.  The NDRB found that the staff judge advocate and separation authority (SA) reviewed the letter of deficiency and concluded the Applicant’s ADSEP package was afforded all of the administrative rights pursuant to the separation process.  Further, the NDRB also specifically noted that MARCORSEPSMAN ¶ 6316. 1 (Rules of Evidence) states: 

An administrative separation board functions as an administrative rather than a judicial body.  Accordingly, … the strict rules of evidence governing trials by court-martial are not applicable.  No evidence will be rejected from consideration solely on the grounds that it would be inadmissible in court-martial proceedings.  [Further, the ASB] … has full authority to decline to accept evidence … which would cause unnecessary embarrassment to a witness or victim involved in the case, or which unnecessarily degrades a witness or victim.

While the NDRB recognizes the Applicant would have appreciated the opportunity to question his accusers/alleged victims during his ASB, those individuals elected not to participate and were not required to be present.  The rules of evidence, other than with respect to privileges, do not apply at NJP or ASB proceedings.  Therefore, hearsay evidence is permissible and the Applicant’s contention that his NJP and ASB were based on hearsay evidence has no merit.  Further, even in arguendo, the ASB should have excluded the alleged victim’s hearsay evidence, the NDRB found there was more than sufficient evidence to find the Applicant engaged in repeated and dedicated efforts to obtain sexual gratification from his junior Marines.

The NDRB concluded the Applicant (a Gunnery Sergeant and staff noncommission officer (SNCO)) engaged in significant and targeted sexual harassment and fraternization with junior Marines holding the rank of Private First Class and Lance Corporal (LCpl).  Additionally, the Applicant was an instructor at a Marine Corps schoolhouse and therefore violated the tenets of an instructor student relationship.  Furthermore, the Applicant had recently graduated from the DoD’s Sexual Assault Advocate Certification Program, which included classes in responding to male victims of sexual assault, intimate partner sexual violence, and take a stand – bystander intervention, and was assigned as the unit’s Sexual Assault Response Coordinator (SAPR) and Uniformed Victim Advocate (UVA).  It was his responsibility to be an advocate for servicemembers.  Instead, he intentionally chose to violate his obligations for personal and sexual gratification.  For these reasons, the NDRB determined that his mental health condition did not mitigate the totality of his misbehavior and found it extremely unlikely that his ASB or SA would have found a nexus between his medical condition and premediated, inexplicable behavior.

The above discussed, 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.  Thus, 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. 

Reviewing the above standards for characterization of service, the NDRB acknowledged and appreciated the totality of the Applicant’s service to the country Corps; his frequent combat deployments; and his numerous contributions to advancing the training of junior Marines in the amphibious assault vehicle training pipeline.  However, the NDRB found the Applicant’s behavior premeditated and predatory in nature.  Messages recovered during his investigation indicated the Applicant asked a junior Marine to take special liberty to hang out at his house over the course of a weekend, and required that the junior Marine needed to keep the special liberty at his house secret.  This indicated to the NDRB that the Applicant knew this type of behavior was prohibited and fraternizing.  The Applicant stated in his ASB that a junior Marine offered to let the Applicant make a pornographic video with his wife, but the Applicant declined because he knew the military’s policy on adultery.  The NDRB found it telling that the Applicant knew adultery was a violation of the UCMJ, but still chose to engage in unacceptable and disturbing behavior with junior Marines as a SNCO and school trained SAPR and UVA.  Additionally, a recovered social media conversation indicated the Applicant made an inappropriate comment to another LCpl regarding how he should engage in a certain sexual activity with a female.  The junior Marines responded “Aren’t you the UVA? Aren’t you supposed to encourage me not to do stuff like that?”  Again, the NDRB found it remarkable that a LCpl comprehended the ethical obligations of a SAPR and UVA, but the Applicant failed to recognize that his behavior was clearly contrary to that expected of a SNCO, SAPR, and UVA.  Finally, social media conversations recovered in the investigation indicated the Applicant had sent a video of himself engaged in sexual intercourse with a male partner to another LCpl in the command.  Messages also indicated the Applicant suggested that the LCpl engage in sexual intercourse with him, that they do a cam show together, and that the LCpl sleep inside of the Applicant’s hotel room following the Marine Corps Ball.  The NDRB highlights these incidents to demonstrate that the Applicant’s behavior was not borderline questionable as he suggested during his hearing, but decisive, premeditated, and predatory acts known by the Applicant to be unethical by all standards of the Marine Corps’ tenets, the SNCO creed, and behavior expected of senior enlisted leaders in today’s military.  The NDRB found no impropriety or inequity in the Applicant’s discharge and concluded the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember, and that an upgrade was not warranted.  Relief denied.

In summary, the NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of gkq1, 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 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.