ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20201028
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:	 

Period of Service Under Review:
Date of Enlistment:  20090511	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100910	Highest Rank/Rate:  PFC
Length of Service:  01  Year(s)  04  Month(s)  02  Day(s)
Education Level:  12	AFQT:  36
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.9 (5)   Behavior/Conduct: 3.4 (5)   
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle   GWOTSM NDSM MM 

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

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  1

- 20100430:	Article 92 (Failure to obey order, regulation) x2
	Awarded: RIR FOP RESTR EPD   Suspended:  NONE

Retention Warning Counseling:  3

- 20100430:	For violation of Art 92x2, wrongful use of a chemical “dust-off”, an inhalant and wrongful use of coriciden, over the counter drug.  

- 20100503:	For “dust-off” as inhalant and coriciden to induce intoxication.

- 20100506:    For unfit for duty due to alcohol level.

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 requests a discharge upgrade and contends that PTSD from Military Sexual Trauma (MST) mitigates the misconduct.

Discussion

Date:  20230427		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.

Pursuant to the Settlement Agreement in Manker v. Del Toro, the Naval Discharge Review Board (NDRB) automatically reconsidered the Applicant’s previous NDRB Decision because it was issued between March 2, 2012, and February 15, 2022 for Iraq and Afghanistan era Navy and Marine Corps Veterans who received General or Under Other-than-Honorable (UOTH) discharges while having a diagnosis(es) (or symptoms) of post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), military sexual trauma (MST), or other behavioral/mental health conditions.  The NDRB automatically reconsidered the Applicant’s case to ensure appropriate application of Department of Defense and Department of the Navy guidance regarding the effect of PTSD, TBI, MST and behavioral/mental health conditions upon service members, and how such effects may have affected conduct ultimately leading to an individual’s discharge. 

As a result of the Applicant’s claim 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.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 92 (Failure to obey order, regulation)  - Two specifications

:  The Applicant requests a discharge upgrade and contends that PTSD from Military Sexual Trauma (MST) mitigates the 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 excuse or mitigate the discharge; b) the condition existed during military service; c) the condition/experience partially 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 (+ Mood component), MST/PTSD)	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	Yes, but not exculpating	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the Applicant?	Yes	
 	 	PRIOR TO ENLISTMENT:

 Education Level:   12
 
Per 12 Sep 2015—NMCSD AHLTA Note: 
 “Development: Pt was born and raised in San Diego, CA. She was raised by her mother and step-father after her parents divorced when she was 11. Gets along well with mom but doesn’t speak to dad. She has two siblings, older brother and younger sister and gets along with them okay. She reported physical and verbal abuse by her boyfriend who she lived with for a while prior to enlisting. She denied sexual abuse/assault history. She graduated from an alternative high school on time after being expelled for fighting, truancy, and drinking at school. Pt had a C average in high school.”

MEPS—AFQT:  36

11 May 2009 —ENLISTMENT: @ Age 18

OVERALL SUMMARY STATEMENT: “Applicant was stationed at Camp Kinser in Okinawa, Japan, where she was the victim of three separate sexual assaults.³ As a direct result⁴ of the military sexual trauma ("MST") she experienced while serving her country as a Marine, Applicant began self-medicating with alcohol and over­the-counter medicine to cope with her then undiagnosed post-traumatic stress disorder ("PTSD").  Applicant participated in the Navy's Substance Abuse Rehabilitation Program, and in September 2010 Applicant received an Other Than Honorable discharge due to misconduct related to drug abuse and alcohol rehabilitation failure.⁵”

January 2010—“The first sexual assault occurred in early January of 2010, shortly after Applicant was stationed at Camp Kinser in Okinawa, Japan.¹⁵ Applicant's Sergeant, invited her to come to his room to have a few beers to celebrate her birthday.¹⁶ Applicant joined him in his room, but she wanted to leave. She started drinking a second beer the Sergeant offered to her, and that is the last thing she remembers from that night.17 Applicant recalls waking up the following morning alone and naked in the Sergeant's bed.¹⁸ She returned to her barracks and texted the Sergeant asking him what happened. The Sergeant stated he had sex with her, an act which Applicant did not and was not able to consent.¹⁹ Applicant felt ashamed and embarrassed by the incident and was told by the Sergeant that if she told anyone what transpired he would lose his rank and he would not be very happy with her.²⁰ She felt threatened and scared.²¹Applicant decided to bury the incident and not report it out of fear of public shaming or other retaliation from her Sergeant.²²”

30 Jun 2010— DEPARTMENT OF THE NAVY SUBSTANCE ABUSE REHABILITATION DEPARTMENT MARINE CORPS BASE  CAMP-- SMEDLEY D • BUTLER, OKINAWA:
“1. The Applicant was screened on 1 Mar 10 and started IOP
treatment on 15 Apr 10 with a diagnosis of 303.90, Alcohol Dependence. She was suspended for drinking in treatment, and resumed her treatment on 7 May
10. In accordance with reference (a) and (b), the Applicant attended 7+15 days of treatment at the Substance Abuse Rehabilitation Department, and completion date from this phase of alcohol treatment is 28 May 10 with a fair prognosis.

2. In accordance with reference (a), the Applicant started
aftercare and participated in weekly continuing care group two times; on 2 Jun 10, and 23 Jun 10. She consumed alcohol on the weekend of 12/13 Jun 10 followed by a hospitalization, and on 26/27 Jun 10 followed by incarceration.

3. The Applicant’s potential for continued alcohol related incidents is judged to be high based on her inability to abstain from alcohol use, as well as her inability to utilize available support networks to deal with cravings and triggers. The Applicant’s current disposition brings into question her viability for future military service. It is strongly encouraged that the patient be considered a treatment failure by the command, for failure to successfully complete his aftercare plan, and be processed for administrative separation.”                                         

July 2010—“Applicant was sexually assaulted a second time while she waiting to be separated from the Marine Corps.²⁷ A fellow Marine, who worked in Applicant's company, CLR 32 Supply Battalion, knocked on her window, asked to come in, and offered her a beer.²⁸ After the second beer, Applicant blacked out and woke up the next morning, completely undressed, to a surprise inspection from her superiors.²⁹ Upon noticing Applicant's delirious behavior, her superiors exited the room and closed the door.³⁰Applicant suspected she had been drugged prior to both the first and second sexual assaults.³¹”

“After the second sexual assault, the Applicant began having vivid nightmares of being attacked and held down by a dark shadowy figure.³²Applicant began to isolate herself because she felt embarrassed and ashamed.³³ She believed that coming forward to file a complaint regarding the sexual assaults would not matter because she had been drinking underage prior to each sexual assault.³⁴ For this reason, the Applicant did not report the second assault until after she was assaulted a third time in July of 2010.³⁵”

July 2010—“When the Applicant did report the second assault in July of 2010, the perpetrator told NCIS investigators that he did not have a sexual encounter with the Applicant; however, the perpetrator of the second assault subsequently failed a polygraph test and requested to speak with a criminal defense attomey.³⁶”

“During the time period following the first and second assaults, and continuing until her separation, the Applicant continued to self-medicate with alcohol and drugs, and participated in the Navy's Substance Abuse Rehabilitation Program.³⁷” 

In April of 2010, the Applicant received a Non-judicial Punishment (NJP) for wrongfully using Coricidin, an over-the-counter medicine, with the intent to induce intoxication, and for wrongfully using the chemical "Dust Off' as an inhalant.³⁸”

July 2010—“When the Applicant did report the second assault in July of 2010, the perpetrator told NCIS investigators that he did not have a sexual encounter with the Applicant; however, the perpetrator of the second assault subsequently failed a polygraph test and requested to speak with a criminal defense attomey.³⁶”

Jul 2010—“The Applicant was assigned to room with a Corporal, who was responsible for mentoring and keeping an eye on the Applicant.³⁹ It was during this time that Applicant was sexually assaulted a third time in July of2010.⁴⁰ While Applicant was asleep in her bed, a Lance Corporal entered her room and sexually assaulted the Applicant. Her Corporal entered the room to find the Lance Corporal on top of Applicant, who appeared to be unconscious.⁴¹  The Corporal yelled for the Lance Corporal to stop.⁴² Prior to the evening in question, the Applicant was prescribed Ambien and she had taken Ambien as prescribed the night of the third assault to assist with sleeping.⁴³ She was unsure of exactly what was happening when she woke up to her Corporal yelling at the Lance Corporal to stop.⁴⁴ Applicant was transported to the U.S. Naval Hospital Okinawa, where a rape kit was completed-the findings were "inconclusive."⁴⁵ Several months after the third assault, another Corporal disclosed to Applicant that he had watched the Lance Corporal sexually assault her prior to the Corporal entering the room .⁴⁶”

After the third assault, the Applicant wanted to leave Okinawa and the Marine Corps.⁴⁷ She felt defeated and her self-esteem continued to decline, but she found the courage to report the second and third assaults to her company First Sergeant, who apparently took no action in response.⁴⁸ Shortly after the third assault, Applicant's administrative separation process was complete and she was discharged with an Other Than Honorable characterization of service for misconduct due to the use of intoxicating substances of alcohol and "Dust Off," and alcohol rehabilitation failure.⁴⁹

13 Aug 2010— STAFF JUDGE ADVOCATE'S REVIEW OF ADMINISTRATIVE SEPARATION

 “…in paragraph 6210.5 of the reference. Respondent knowingly and willingly waived her right to an administrative discharge board pursuant to and consistent with her pre-trial agreement with the convening authority.”

10 Sep 2010—DISCHARGE:  UOTH

127 REENTRY CODE
RE4B

26 SEPARATION CODE
HKKl

24 CHARACTER OF SERVICE /Include L'PIJrades)
l,'NDER OTftER THAN HONORABLE CONDITIONS

POST SEPARATION:

FROM UNDATED PERSONAL STATEMENT:

“I joined not knowing anything about the military or what it has to offer. It was pretty much my last option. I wasn't living at home, I wasn’t going to school, and I was dealing with an abusive relationship and an alcoholic mother. I wanted to leave the society I was in with something better to look forward to. I went back to high school and graduated three months early with honors and that's when I realized I had potential to something better with myself. I never tried college because I just graduated high school last year. I have always been one to keep all of my personal business to myself in fear that I would be judged like I am now daily, but I know it is my own fault. I do want you to be aware that I take full responsibility for my actions. I have accepted my consequences and am still paying for my actions. I have no problems during my working hours and it is no problem to have any of my NCOs or SNCOs vouch for me. I am a hard worker and am always on task…”

“Applicant acknowledges that her alcohol and drug use in the military was a mistake; however, her PTSD as a result of MST directly contributed to her use of alcohol and other intoxicating substances.⁵⁷ Since being discharged from the military, Applicant has been fighting for her mental and physical health.⁵⁸ Applicant has a passion for helping others; she volunteered in the kitchen at Veterans Village of San Diego ("VVSD"), a homeless shelter and recovery center, where she helped feed homeless veterans prior to the COVID-19 pandemic.⁵⁹ Applicant understands the importance of a good education and a stable career. The Applicant recently completed a six-month substance abuse treatment program at the VVSD.⁶² The therapist treated only her substance abuse, but also observed and monitored her for symptoms of PTSD as a result of her MST.⁶³ During the treatment program Applicant submitted herself to multiple, random, urinalyses which all came back negative.⁶⁴ Although she made progress with her substance abuse treatment, her therapist stated that the symptoms from her MST require further attention, and that her symptoms appear to be major barriers to her ability to maintain 
employment, relationships, sobriety, and overall quality of life.⁶⁵”

12 Sep 2015—NMCSD AHLTA Note:
“ CONFIDENTIALITY: The patient was voluntarily seen for this visit. The limits of confidentiality were discussed with the patient prior to initiation of evaluation. The contents of this report are considered medically privileged and should be kept private. Contents may be revealed if failing to do so would
endanger the patient or others, or in specific situations such as child or elder abuse covered by the jurisdiction in which the evaluation was performed. For active duty evaluations, the patients Commanding Officer or their delegate is legally entitled to request access to the medical record.
ID:
Pt is a 24 yo F, medically retired SM with hx of PTSD (military sexual trauma), ETOH use D/O, and BPD who presents to NMCSD ED on a 5150 for danger to self via SDPD in the context of ETOH use.
CC:
‘I don’t want to be here’”

28 Mar 2019—VARD: 
“The rating decision dated March 28, 2019, established service connection for treatment purposes only for posttraumatic stress disorder with major depressive disorder and opiate use disorder, cannabis use disorder, alcohol use disorder, and stimulant use disorder. The decision was based on a Character of Discharge (COD) detennination [sic] decision dated November 15, 2010 showing that your service for the period May 11, 2009 to September 10, 2010 was dishonorable for VA purposes and considered a bar to all benefits administered by the Department of Veterans Affairs. The decision granted entitlement to health care under Chapter 17 of Title 38, U.S.C. for any disabilities determined to be service connected for the period of service in question. We also advised you that should you be able to get your COD upgraded to under honorable conditions or honorable by your service department, we can reconsider your bar to benefits and consider service-connection for compensation purposes.”

28 Oct 2020—VARD: 
EFFECTIVE DATE of 10 Nov 2022 VARD awarding a disability rating of 100%. For PTSD

“After Applicant's discharge, she enrolled in and completed the Substance Abuse Residential Rehabilitation Program ("SARRP") at the San Diego Veterans Affairs Medical Center ("VAMC").⁶ Applicant's current diagnosis of PTSD would rate her at 70 percent with the Department of Veterans Affairs ("VA") if she were eligible to receive disability compensation; however, she is 
currently unable to receive certain VA benefits due to her characterization of
UOTH.”

COMMENT:  Against a background of having emerged from a dysfunctional developmental-family setting, manifesting dysfunctional behavior problems in her school and personal relationship life, and, likely, susceptibility to turning to harmful addictive substances, the Applicant did demonstrate the ability to apply behavioral correction, including having emerged from behavior resulting in expulsion from an “alternative school” to graduating from high school “early” and with “honors.”  Unfortunately, adjusting to military life fell prey to stressors leading to a relapse including Alcohol Use Disorder, further leading to depressing consequences including becoming the reported victim of several episodes of MST and alcohol rehabilitation failure, initially resulting in an Adjustment Disorder and eventually led to her OTH discharge and diagnosis of PTSD incident to MST, likely facilitated by her susceptibility to Alcohol and other substance abuse (See below “Diagnosis History”).  Accordingly, there would appear to be a mitigating though not entirely exculpating nexus between her misconduct and the forgoing Mental Health conditions.   	

When reviewing discharges, the Board considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. 

In this case, the Applicant’s service was honest and faithful but significant negative aspects of her conduct or performance of duty outweighed the positive aspects of her service record.  In making its determination, the Board considered the totality of the Applicant’s service inclusive of her misconduct and overall active duty tenure of 16 months that included service as a Warehouse Clerk.  The Applicant was separated after a Non-Judicial Punishment for the wrongful use of the over-the-counter medication Coricidin (Triple C) and Dust Off (huffing).  The Board considered the Applicant’s contention that three sexual assault incidents while on active duty caused PTSD and mitigates the misconduct.  A review of the Applicant’s military medical records provides evidence of a dysfunctional developmental-family setting, which the Applicant was able to demonstrate behavioral correction, before relapsing to Alcohol Use Disorder due to maladjustment to military life.  Ultimately leading to depressing consequences including becoming the reported victim of several episodes of MST and alcohol rehabilitation failure.  The Board found that there was a mitigating nexus between her misconduct and her service connected mental health condition.  However, the Board held that her mental health condition was not entirely exculpating for the misconduct.  The Applicant is encouraged to request a Personal Appearance Hearing to present specific details on her mental health condition while on active duty and how it mitigates the misconduct.

In addition, the Board accounted for the Applicant’s post-service conduct and accomplishments with due consideration towards her desires to continue her education and participation in programs directed at improving communities and the lives of others.  These efforts demonstrate the values and resilience the service seeks of its veterans.  In consideration for all these factors, and the misconduct, the Board determined that the misconduct was a significant negative aspect within the Applicant’s military career and it was partially mitigated by her mental health condition.  Consequently, the Board found the assigned characterization of service General (Under Honorable Conditions) is appropriate and found that a change in narrative reason for separation to Secretarial Authority is appropriate.  

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF1, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Service [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  (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.