ex-Pvt, 

Current Discharge and Applicant’s Request

Application Received:  20220119
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:  HARDSHIP
Reentry Code change to:  NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:   	             	Active:   

Period of Service Under Review:
Date of Enlistment:  20050815	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090123	Highest Rank/Rate:  LCpl
Length of Service:  03  Year(s)  04  Month(s)  23  Day(s)
Education Level:  12	AFQT: 62
Deployment/Operation:  

Evaluation Marks (# of occasions):  Performance/Proficiency:  4.5 (NFIR)   Behavior/Conduct:  4.1 (NFIR)   
Fitness Reports:  

Awards and Decorations (per DD 214):  Rifle (2) NMCAM SSDR ICM (w/1 Bronze Service Star) GWOTSM NDSM 

Periods of UA:  NONE
Periods of CONF:  20080215 - 20080301, 16 days
Other Time Lost per DD214:  NONE

SPCM:    CIVIL ARREST:    CC:    NJP:  NONE

SCM:  1

- 20080215:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Sentence:  RIR FOP CONF RESTR 
	CA:  Sentence is approved and will be executed.

Retention Warning Counseling:  2

- 20060216:	For violation of Article 86.

- 20080222:	For violation of Article 112a.

NDRB Documentary Review Conducted (date):  20110412
NDRB Documentary Review Docket Number:  MD10-00833
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.  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 traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) were mitigating factors in his misconduct.
2.	The Applicant contends that his post-service conduct warrants consideration for a discharge upgrade. 

Discussion

Date:  20230620		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 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 NDRB completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

As a result of the Applicant’s claim of a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The Applicant’s service record documents completion of a deployment from March to October 2007 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) 

:  The Applicant contends his TBI and PTSD were mitigating factors in his misconduct.  Additionally, the Applicant contends that his post-service conduct warrants consideration for discharge 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 NDRB 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 NDRB 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 outweighed 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; likely, at least an undiagnosed Adjustment Disorder/Problem of Life spectrum condition, and, possibly, but insufficiently documented contemporary with enlistment PTSD (as later diagnosed by the VA)	
2.	A.	Were these conditions present at time of misconduct?	Yes; see above	
	B.	Were these conditions mitigating for the misconduct?	Yes; see above	
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:	HISTORY INCLUDES:

PRIOR TO ENLISTMENT:

28 Jul 1985:  Date of Birth.

“born in 1985 to an alcoholic mother and an emotionally, psychologically and physically abuse[ive] father. My father left when I was 6 and I did not hear from him again. My mother had a series of unstable relationships and those men would also abuse me…;” raised in Norwalk California by single mother over an 18 year period.  His twin sisters died of medical complications.  No contact with his father until age 19 and, apparently, no viable relationship grew out of that, apparently brief, encounter.

Education Level—12+ years (“sent to good schools” by single mother):  (3.8 GPA; active in Track & Field (received full scholarship to Cerritos junior College); Jazz Band; and community activity).  During college (Political Science major), he worked his way up to assistant manager at a clothing store.

Quit college and job to enlist in USMC due to general dissatisfaction and inspired by family history of military service.

Reportedly, had a steady girlfriend through high school and reported no alcohol or drug use.

16 Jun 2005—Superior Court of California arraignment for charges related to “guns and making a threat.”

My unit went home and I crossed deck…Accepted separate deployment in Fallujah so another Marine could go home …coke x1 time …don’t recall it and it was wrong was drunk…and had no contact with his father until he was 19 years old

15 Aug 2005—ENLISTMENT:  “Age at Enlistment: 19 @ Age 20

Early 2007—DEPLOYED to Al Habbaniyah, Anbar Province, Iraq.

STATEMENT:

“Joined the Marine Corps, seeking a new start to his life, to make a positive contribution, and with a desire to be a part of something bigger than himself.2 Following basic training at Camp Pendleton, [Applicant] went to Camp Lejeune for his MOS training as an electrician and was assigned to the 2nc' Combat Engineering Battalion.3 In February 2006, [Applicant] was counseled concerning an Article 86 unauthorized absence related to being late for his shift as fire watch…
In February 2007, [Applicant] completed a Pre-Deployment Health Assessment…
Shortly thereafter. [Applicant] was deployed to A1 Habbaniyah {a/k/a Habbaniya), Al Anbar Province.  Iraq.6 During [Applicant]’s seven-month tour, he constructed forward base operations, conducted lED sweeps, performed foot patrols, provided convoy security, and was exposed to small arms fire, sniper fire, rocket propelled grenades, as well as exploding lEDs.
7 Very early in [Applicant] s deployment, around April 2007, while providing security for an assault force, he witnessed a vehicle containing fellow marines run over a buried lED.8 Marines Johnathan Kirk and Dale Peterson, both friends of [Applicant], were killed as a result of the explosion.9 [Applicant] also observed a mass grave of Iraqi soldiers, police and civilians.
10 In 2007, while on convoy in Iraq, [Applicant] suffered a [undocumented] traumatic brain injury (“TBI”) when a nearby vehicle was hit by an exploding lED…The explosion caused [Applicant]’s head to strike the side of the truck he was traveling in. He did not lose consciousness but was stunned and confused for several minutes…While in Iraq. [Applicant] was also exposed to multiple controlled detonations without losing consciousness… 
During the extended deployment. [Applicant] volunteered for combat missions in Fallujah knowing he would be putting his own life at risk…
In September 2007, Just prior to ending his seven-month deployment, [Applicant] completed a Post-Deployment Health Assessment in which he indicated no traumas or mental health symptoms…Based on his desire to be a Marine, serve his country, and be with his Marines, [Applicant] chose not to disclose the mental and physical challenges…”

17 Jan 2008—AHLTA Note:  “is a 22 year old male.
He reported: Encounter Background Information: walk-in w/ cc of right foot 5th met fracture that occurred a few days ago w/military pt. pt ran through mud puddle and twisted foot. Tx was posterior splint and crutches.
Musculoskeletal symptoms.
No systemic symptoms. No head symptoms. No neck symptoms. No eye symptoms. No otolaryngeal [sic] symptoms. No breast symptoms. No cardiovascular symptoms. No pulmonary symptoms. No gastrointestinal symptoms. No genitourinary symptoms. No endocrine symptoms. No hematologic symptoms. No neurological symptoms. No psychological symptoms.”

07-18 Jul 2008—NH Camp Lejeune Substance Abuse Clinic encounters.
     e.g.., 16 Jul 2008— Camp Lejeune Substance Abuse Clinic AHLTA Note:  “He has difficulty sleeping and averages 3 hours of broken sleep per night. He has never participated in therapy or been prescribed pyschiatric medications. Although he admits to having anger management concerns and not feeling 'normal', he is hesitant to engage in counseling… Psychiatric Exam: 
• Mood was depressed, with despair, anxiety, and irritability. • Affect was tearful with repeated attempts to maintain calm appearance…
A/P Written by ___________ @ 16 Jul 2008 1238 EDT
1. NO PSYCHIATRIC DIAGNOSIS OR CONDITION ON AXIS I: r/o Alcohol Abuse with possibility of Alcohol Dependence”

04 Jan 2008—Occurrence Date of Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) COCAINE use Violation:
	Sentence: RIR FOP CONF RESTR 

Personal STATEMENT indicated he and his buddies “didn’t feel good and we were excited…a great time & scary time…Lonely for girlfriend  and family…drank with the guys a lot drinking part of the culture…scared more than any time in my life…buddies were helpful… I was blessed… never in vehicle that experienced an IED blast   Yes I should’ve reported things  but the mission…a lot of other factors … FOB BLACK and FOB WHITE  took gunfire and returned gunfire…  don’t know why I didn’t get a CAR … Achievement Medal…for entire time …”

“[Applicant] did not disclose his conditions in the March 2008 Post-Deployment Health Reassessment and 2009 Separation Exam.
exam because he was angry and disappointed with himself for letting his fellow Marines down.  [Applicant] was separated on January 23, 2009 with an Other Than Honorable discharge for misconduct (drug use).”

14 Jan 2009—SEPS:  Benign (FOLDER)

23 Jan 2009—DISCHARGE:
ENLISTMENT Details:  24. CHARACTER OF SERVICE (Include upgrades)
OTHER THAN HONORABLE CONDITIONS
26. SEPARATION CODE HKKI; 27. REENTRY CODE RE-4B
 Length of Service:  03  Year(s)  04  Month(s)  23  Day(s)
Performance/Proficiency: 4.5 (NFIR)   Behavior/Conduct: 4.1 (NFIR)   

POST SEPARATION:

25 Jan 2010—70% VA RATING EVALUATION EFFECTIVE DATE.
 
Mar – July 2009--“Sales Associate  Macy's March - July 2009: was fired for stealing, which he did to finance his methamphetamine use”THEFT  ADDICTED TO DRUGS  LA COUNTY 

Personal STATEMENT:

“January 21, 2010, [Applicant] was admitted to the Veterans Villages Recovery Center…Dual Diagnoses Program based on his polysubstance dependence…He was diagnosed with PTSD and substance induced thought disorder…noted that [Applicant] had experienced a TBI [undocumented but, apparently, mild by history]”

16 Apr 2010—VETERANS VILLAGE RECOVERY CENTER:
Date of Admission: 1/21/10; Date of Discharge: 2/12/10
Unemployed status noted.  Discharge Diagnoses
“Axis I: Polysubstance dependence (meth, marijuana, tobacco)
PTSD
Substance Induced thought disorder 
Axis II: Deferred
Axis III:TBI
Axis IV: Moderate
Axis V:   GAF 60”

 06 Jun 2018—Effective Date of 100% VA Evaluation for PTSD.

Personal STATEMENT:

“During his participation in the program,
WRC provided a letter to the Riverside Superior Court stating that [Applicant]'s PTSD symptoms contributed to his substance abuse.34 [Applicant] was discharged from the VVRC
program after 81 days, on April 12, 2010.35

~Sep 2010—VA RECORD:
“meth daily, route: smoking. His use led to 3 arrests., 2 possession
and one grand theft charge [after he stole from his employer, Macy's, to
pay for his meth habit). He did 7 days jail time, paid fines, and is
currently on probation.”

10 Oct 2010—Applicant’s STATEMENT:

“underwent a C&P PTSD initial evaluation.43 He described witnessing death and dying and felt everyday like he was going to die.44 He also mentioned a sniper who killed three Marines…The evaluation references the War Events Inventory wherein [Applicant] endorsed exposure to several events with distress ratings of "extremely", including the following: 'Were you in a difficult or dangerous situation where you felt fearful for your life?'; 'Did you have friends that died in the war?'; 'Did you witness human suffering'; and 'Were you exposed to potentially harmful substances?'.46 The evaluation also describes [Applicant]'s Post-deployment Readjustment Inventory, which references numerous significant symptoms.47 He was diagnosed with PTSD, Major Depression, and Poly-Substance Abuse.4

12 Apr 2011—NDRB DOCUMENTARY REVIEW:  “Proper as issued and that no change is warranted.”
09 Oct 2014—“MSLA Review PTSD (revised) Disability Benefits Questionaire [sic]” completed by a “Ph.D.” included: 

“4c. …No diagnosis of TBI…

4. …all symptoms that actively apply to the Veterans diagnoses…
Depressed mood…Anxiety…Suspiciousness…Panic attacks that occur …Less than weekly…

7c. …There is no diagnosis of substance abuse…

Behavioral Observations:
The veteran was appropriately dressed and groomed for session. The veteran's motor activity appeared anxious. The veteran’s speech was pressured at times and he stuttered at times. The veteran's thought process and thought content appeared normal. The veteran reports suicidal ideation but denies a plan and intention. The veteran denies HI. The veteran denies hallucinations and delusions. The veteran appeared oriented.”

2014—VA DBQ reportedly resulted in a disability rating of 70% for   PTSD.

2017 & 2018 for OPERATION ASPIRE.

Dec 2018  DBQ—reportedly resulted in a VA disability rating of 100%.

01 Sep 2018—VA PTSD/TBI EXAM FORM #4 OCCUPATIONAL AND SOCIAL IMPAIRMENT; pp 156-157 of “FORMAL” File:
“SECTION II-CLINICAL FINDINGS
28 RELEVANT OCCUPATIONAL AND EDUCATIONAL HISTORY:
“At school he would have…uncontrollable panic attacks, poor time management and felt overwhelmed He withdrew from school recently.”

17 Sep 2019 (over 9 years post discharge)—VA ASPIRE CENTER PROGRAM CERTIFICATE OF ACHIEVEMENT:  AWARD 

“To Whom it May Concern:
This letter is an addendum to the previous letter written about [Applicant]. He continues to strive to better himself and work towards his goals.
For the last two years, [Applicant] has been working continuously in the housekeeping industry. He first worked at the Marriot Hotel in Irvine for 4 months before transferring to the Long Beach VA to continue with their Environment Management Systems Housekeeping. After 11 months of working at the VA as a contractor, he was offered a full time, permanent position with the VA housekeeping.  [Applicant] is currently working in the Emergency Department, one of the most stressful…positions at the VA in Long Beach.  Working with veterans has always been [Applicant]’s goal. This current position allows him to be a productive team member in the VA while still caring for the veteran community. 
In addition, [Applicant] has been in a stable relationship with his partner for the last 8 years. He just went to his step-daughter’s high school graduation. This is a huge accomplishment for the whole family. He is a dedicated family man and they are always his priority.” 

COMMENT:  
Against a formative background of having been the product of a dysfunctional marriage, a generally productive adolescence, though punctuated by acting up behavior resulting in his facing a legal gun related charge and quitting college due to disillusionment with his Political Science Major, the Applicant enlisted in the USMC, reportedly out of a desire to do better with his life and inspired by his family history of military service.  His enlistment became complicated due to a series of alleged combat exposures including undocumented mild TBI experiences while deployed to Iraq which, along with later additionally claimed PTSD symptoms, were not documented in his deployment health record or reported on subsequent Post Deployment Physical Health Questionnaires, or ever, even shared with available confidential mental health/stress personnel, or even in the context his post-Cocaine detection treatment at SARP in January 2008 where he, only, acknowledged an element of anxiety and depressed feelings resulting in a clinical finding limited to Alcohol abuse and “NO PSYCHIATRIC DIAGNOSIS.”   However, it was not until shortly after his OTH discharge, when, basically, exposed to a VA assessment which included questions similar to the PDHA questionnaire items did he acknowledge symptoms resulting in the VA’s initial diagnosis of PTSD.  Attempts during his PAH to clarify the foregoing and other nominal inconsistencies frequently resulted in signs of irritable affect and rapid, pressured speech (also see 09 Oct 2014 VA evaluation) followed by a more apologetic stance and an inability to recall most instances which he attributed to his acknowledged heavy Alcohol intake.  This included his one-time Cocaine metabolite positive urine for which he took responsibility but denied recollection which he attributed to his heavy alcohol intake.  Although reportedly doing remarkably well in his current employment position with the VA and expressing much gratitude for the opportunity to be of service to wounded and ill veterans extended to him by the VA’s Long Beach facility, when asked about current medication, he referred to a nearby box of medication, indicated Quetiapine “for sleep,” but abruptly stopping without a clear explanation.  Also, there was a tendency to abruptly dismiss questions dealing with apparently uncomfortable issues by, for example, claiming lack of memory for details, at least initially, (e.g., arrest for stealing from Macy’s during employment shortly after discharge to finance a “meth” habit) and an apparent embellishment of his claim to have extended for almost a second tour in Iraq when the extension had, apparently, been for only about a month (not to diminish the potential exposure to danger implicit in his even brief voluntary extension).  Despite the above inconsistencies and lack of important medical/mental health related documentation contemporary with his active service, the Applicant’s, record of service and appearance of a diagnosis of PTSD by the VA shortly after discharge and eventual post discharge accomplishments (including reportedly “no drugs since 2010) merit consideration of relief.  Accordingly, a mitigating, though short of exculpating, nexus between the Applicant’s misconduct and the likely but unrecognized Adjustment Disorder/Problem of Life disorder spectrum PTSD (and, to a degree, Alcohol Use Disorder) would appear appropriate.	

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included one SCM for violation of Article 112a of the UCMJ; this was a willful failure to meet the requirements of his contract honorably.  Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Article 112a 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 NDRB 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. 

The Applicant was assigned a discharge characterization of Under Other Than Honorable Conditions after being found guilty at SCM for using cocaine.  However, the Applicant contends his PTSD and TBI were mitigating factors in his misconduct.  The NDRB requested the Applicant’s medical treatment records for both in-service and post-service medical treatment from the U.S. Department of Veteran’s Affairs (VA) and conducted a thorough review.  The NDRB Medical Officer was not able to conclusively identify a diagnosis for the Applicant but finds it likely that he suffered from an undiagnosed Adjustment Disorder/Problem of Life spectrum condition.  The Applicant testified that he did not report PTSD or TBI during post-deployment health assessments due to his desire to stay in his Marine unit as he believed reporting this information could lead being removed for health reasons.  However, the Applicant expressed that he had PTSD to the VA and was diagnosed with PTSD shortly after his discharge from the Marine Corps.  However, the NDRB is not bound by VA decisions, nor do VA decisions have any bearing on the decisions of the NDRB.  Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps.  The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy and Marine Corps when determining a member’s discharge characterization.  Further, there was a lack of medical documentation to support the Applicant’s claim for PTSD and TBI.  Nonetheless, the Board found the Applicant’s mental health does provide partial mitigation for his misconduct.  

In addition to the Applicant’s mental health contention, he also contends his post-service conduct warrants consideration for an upgrade.  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, multiple character references, evidence or earning a bachelor’s degree in social work from the California State University and earning a VA Certified Peer Specialist Training certificate, and states that he has completed two years of a three-year master’s degree program for social work.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB 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.  

In this case, the NDRB finds that 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 NDRB 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 4.5 and 4.1 and his earning a Navy and Marine Corps Achievement Medal.  The Applicant’s testimony describing that he hid PTSD and TBI during post-deployment health assessments to stay with his Marines is obscured by his abuse of alcohol and illegal drug use.  The NDRB also considered the Applicant’s post-service conduct and two additional acts of misconduct which the Applicant admitted to during the hearing.  The Applicant testified to an act of larceny from Macy’s and getting into a dispute with the police following his discharge.  In conclusion, the NDRB finds that the evidence of record does not show that the Applicant’s mental health was a sufficient mitigating factor to completely absolve the Applicant’s conduct or accountability concerning his actions.  The NDRB considered this case in accordance with the Kurta Memorandum, but found insufficient evidence to grant full relief.  Thus, by unanimous decision, the NDRB found relief in the form of an upgrade in the characterization of service to General (Under Honorable Conditions) warranted.

For the reasons stated above for warranting a change to the characterization of service, and in accordance with the principles of liberal consideration, the NDRB held that mitigation should also be given to the narrative reason for discharge.  In other words, the NDRB found that because the Applicant’s mental health mitigated the maliciousness and willful nature of the misconduct enough to warrant an upgrade to the characterization of service then it also rationally applied to the narrative reason for which the Applicant was discharged.  In essence, the NDRB found that the underlying narrative reason for the Applicant’s discharge is not misconduct, but the Applicant’s inability for continued naval service.  Therefore, stating in the simplest of terms, the NDRB held the Applicant’s overall service should be deemed General (Under Honorable Conditions) with a narrative reason for discharge of Secretarial Authority.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the NDRB found .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF1, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

ADDENDUM:  Information for the Applicant

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by the NDRB, the 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.