ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20220124
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.5 [DRUGS] 

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:	 20000821 - 20031002  

Period of Service Under Review:
Date of Enlistment:  20031003	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090130	Highest Rank/Rate:  SSgt
Length of Service:  05  Year(s)  03  Month(s)  27  Day(s)
Education Level:  12	AFQT:  58
Deployment/Operation: 
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  (2) Pistol  (3) GCM (w/1 Bronze Star) (2) ACM OSR SSDR (w//3 Bronze Stars) (4) GWOTEM (Iraq) GWOTSM ICM NDSM MUC (2) NUC (3) MM LoA (2) CoA (5) AFOUA

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

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

SCM:  1

- 20090108:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 2 specifications
	Sentence: RESTR 
	CA: The sentence is approved and ordered executed

NDRB Documentary Review Conducted (date):	20210504
NDRB Documentary Review Docket Number:	MD21-00052
NDRB Documentary Review Findings:		Characterization changed to General (Under Honorable Conditions)

Types of Documents Submitted/reviewed

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

Additional Statements

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

	Expert:  			Character:    

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

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 6 June 2007 until 25 November 2013, Paragraph 6210.5, MISCONDUCT.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends his in-service conduct warrants an upgrade to Honorable. 
2.	The Applicant contends his post-service conduct warrants an upgrade to Honorable.
3.	The Applicant contends his post-traumatic stress disorder (PTSD) was a mitigating factor in his misconduct..

Discussion

Date:  20230426		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 in support of Operation IRAQI FREEDOM.  Pursuant to § 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.

The Applicant's record of service included:

  for  of the UCMJ:  
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 

Issues 1-3: The Applicant contends that both his in-service and post-service career warrant an upgrade and that liberal consideration should be further applied.

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 excuse or mitigate the discharge; b) the condition existed during military service; c) the condition/experience mitigated 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?	Yes – Adjustment Disorder, PTSD	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	Yes (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 26 Apr 2023.

The Applicant, a Marine veteran with 3 combat deployments, was separated in 2009 for multiple violations of service drug policy.  In rebutting his discharge, the Applicant contends that PTSD clouded his judgement and, in part, should mitigate his characterization and reason for discharge.  The Applicant received an upgrade to Under Honorable Conditions (GEN) from the NDRB in 2021.  No additional documentation was provided.

Brief timeline:
21 Aug 2000 - Enlistment
15 May – 24 Nov 2004 – OIF deployment
2005/6 – Initial diagnosis of PTSD (refused treatment)
14 May – 18 Nov 2007 – OIF deployment
14 Apr – 2 Nov 2008 – OIF deployment
13 Nov 2008 – Approximate date of 1st marijuana use
02 Dec 2008 – Approximate date of 2nd marijuana use
01 Jan 2009 – SCM (Art 112a x 2)
30 Jan 2009 – Discharge
2010-2011 – Afghanistan (civilian contractor)

The combination of the Applicant's medical treatment files, testimony, and submitted materials lends to the following conclusions:

In reviewing the Wilke Criteria for determining equity, injustice, or clemency grounds – I find several factors contributing to this case including:
a. Applicant’s candor and acceptance of responsibility
b. Harsh nature of the punishment
c.  Length of time since discharge
d.  Character references & letters of recommendations
e.  Evidence of rehabilitation
f.  Character and reputation of the Applicant

Though I do find considerable evidence of PTSD, I do not find a strong nexus between the PTSD and the Applicant’s drug use.  I find it more likely that the Applicant succumbed to peer pressure and use marijuana on at least one occasion, though government regularity would indicate twice.  However, PTSD likely played a larger role in adding daily life stressors, poor sleep, etc., that could be factored in to this case on a wider basis.

Additionally, despite the use, however, I find this Applicant record of service (3 deployments in 4 years) and remarkable post-service contributions to veterans (Semper K9 program, etc.) deserves special recognition.  In this instance, I find the totality of the Applicant’s record merits further upgrade in characterization.

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included a Summary Court-Martial for violation of Article 112a of the UCMJ; this was a failure to meet the requirements of his contract honorably.  However, the Applicant contends his PTSD was a mitigating factor in his misconduct.  The Applicant’s official military service record diagnosis of PTSD, coupled with additional post-service documentation provided by the Applicant, support the Applicant’s contention that his PTSD was a mitigating factor associated with the in-service misconduct.  Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented PTSD diagnosis, and the Applicant’s service in combat, warranted additional consideration in the determination of overall characterization of service.  

The Board also noted the Applicant had multiple combat tours to Iraq as a dog handler. All of these tours were kinetic in nature and were nearly back-to-back-to-back.  In two cases, the Applicant had to waive dwell in order to deploy, once to Iraq and another to Israel.  In reviewing the Applicant’s medical file, the NDRB Medical Officer noted the early indications of PTSD that resulted in a diagnosis much later in the Applicant’s life.  Additionally, the NDRB Medical Officer noted that there was not a clear nexus between the Applicant’s PTSD and his use of illegal drugs.  Furthermore, the NDRB also noted that the Applicant was granted liberal consideration for his mental health concerns during the document review process.  During the document review, the Applicant was upgraded from an Other Than Honorable characterization to a General (Under Honorable Conditions) characterization of service.  The NDRB determined that further mitigation, under the Wilkie and Kurta memos, was not appropriate in this case.

The NDRB further considered the Applicant’s post-service accomplishments for clemency purposes.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of financial stability and continuous employment.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.

The Board also found persuasive the Applicant has worked as a dog handler for a government contractor and deployed to Afghanistan in a combat role with the United States Army, making this his fourth combat deployment.  Additionally, the Applicant started a non-profit organization using his dog handler and training skills.  In this role, the Applicant trains service dogs for veterans with PTSD, civilians with mental health concerns, as well as physical and mental impairments.  The Applicant’s non-profit is a million dollar organization with a far ranging reach.  The Applicant has been given numerous laudatory comments and accolades by nationally and internationally distributed publications for his efforts providing service dogs.  Notably, the Applicant was named the Washingtonian of the Year for his efforts with the non-profit.  Outside of his non-profit organization, the Applicant volunteers at the National Museum of the Marine Corps and the Veterans of Foreign Wars. 

The Applicant, in the opinion of the Board, is the embodiment of the saying “we return Marines to society as better people.”  While the NDRB does not condone the Applicant’s actions prior to his entering a terminal leave status, we do consider his post-service actions and accomplishments as laudatory.  The Applicant continues to serve the Marine Corps and his community in a superb effort.  The Applicant has more than met the expectations of former Marines in society.

In consideration of 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 Honorable 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  HONORABLE, the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF1, and the reentry code shall  RE-4B.  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.  (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.