ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20211117
Characterization of Service Received:   
Narrative Reason for Discharge:   COURT-MARTIAL
Authority for Discharge:   MARCORSEPMAN 1105 [COURT-MARTIAL] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED 
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 		Active:	 

Period of Service Under Review:
Date of Enlistment:  20071029	Age at Enlistment:  
Period of Enlistment:  05 Years   Extension
Date of Discharge:  20110719	Highest Rank/Rate:  LCpl
Length of Service:  03  Year(s)  00  Month(s)  28  Day(s)
Education Level:  12	AFQT:  73
Deployment/Operation: 

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

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

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

NJP:  NONE   SCM: NONE   CIVIL ARREST:  NONE   CC:  NONE

SPCM:  1

- 20100326:	Article 80 (Attempts) 
	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Sentence: Sentence adjudged on 26 March, Confinement for 10 months, forf of $900.00 per month, red to E-1 (PVT), to be discharged with a Bad Conduct Discharge
	CA:  Sentence is approved.

Retention Warning Counseling:  1

- 20100402:	For found guilty at a Special Court Martial on 26 March 2010 of Articles 80 and 112a for attempt to distribute methylenedioxy methamphetamine and introduction of methylenedioxy methamphetamine onto an installation used by armed forces.

Types of Documents Submitted/reviewed

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

Additional Statements

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

	Expert:  			Character:    

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

Pertinent Regulation/Law

A.  Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F ch 2), effective 6 June 2007 until 25 November 2013.

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 seeks clemency and contends that the misconduct that led to her administrative separation is mitigated by 
      mental health issues that were exasperated by personal stressors, sexual harassment she was subject to and a sexual assault.

Discussion

Date:  20220826		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 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 UCMJ:  
Article 80 (Attempts) 
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

:   The Applicant seeks clemency and contends that the misconduct that led to her administrative separation is mitigated by mental health issues that were exasperated by personal stressors, sexual harassment she was subject to and a sexual assault. 

The Applicant seeks clemency and states that the misconduct that led to her punitive discharge should be excused as she was subject to personal stressors, sexual harassment and rape while serving on active duty. Given the disruptive and abusive environment described by the Applicant she states that she was not acting rationally when she committed her misconduct and due to her emotional instability lacked judgment and logic when making an attempt to address one of the family issues she was dealing with. The Applicant also raises in her application that her sexual orientation also compounded the stress and anxiety she experienced as she was serving during the time when the Don’t Ask Don’t Tell (DADT) policy was still being enforced. While her discharge is not associated with the DADT policy she emphasizes the pressure and challenges the policy placed upon her personally. The Applicant was found guilty at a Special Court Martial for violations of Articles 80 and 112a for  an attempt to distribute methylenedioxy methamphetamine and introduce these illegal drugs onto a U.S. Government Military Installation. Upon conviction the Applicant was sentenced to confinement for 10 months and discharged from active duty per the direction of the Military Judge with a Bad Conduct Discharge. 

The Board thoroughly reviewed the record of evidence which included all submitted materials on the part of the Applicant. Per the guidance directed in the Kurta and Wilkie memorandums the Board assessed the Applicant’s petition with liberal consideration given she cites mental health challenges and that she was victim to a Military Sexual Trauma. As directed, the Board included a licensed Psychiatrist who reviewed the Applicant’s medical record and the statements provided within the application package she submitted. Both the service and medical record did not contain any reference to a sexual assault or that the Applicant was seeking any medical treatment for trauma, anxiety or depression during her tenure on active duty. The Board was challenged to establish a nexus between the misconduct committed and the mental health challenges the Applicant raises for the Boards consideration which include PTSD, anxiety and trauma from the harassment and assault she states she was subject to. While the Board does not contest the Applicant’s account of her time on active duty it did not find that the misconduct committed to be an associated behavior with the issues she asks the Board to account for. The violations of Articles 80 and 112a associate with a pre-meditated act and that she was acting within conditions and a mental state that she had control of.  The rationale cited by the Applicant for her decision to pick-up drugs for her friend and bring them on base reflects a conscious decision to commit misconduct when she was capable of discerning right from wrong. There is no indication within the record that the Applicant acted out in behaviors associated with PTSD and trauma where she committed violations due to the influence of a dissociated state or impulsive behavior. 

The Board was also challenged to overcome and find impropriety or inequity when the Applicant was afforded and exercised due process and plead guilty to the charges. While the Board accounts for all considerations highlighted within the application that highlight the guidance and directions of department policy, the specific misconduct committed was assigned through a court martial and determined to be bad conduct over a serious offense. Introducing illegal drugs to a military installation and attempting to distribute these drugs aboard the installation presents significant risk to the force and warfighting readiness. Given the facts stated within the record of evidence and the lack of a specific nexus to the actual misconduct committed the NDRB was not capable of granting relief. Although the Applicant introduces considerations that were not accounted for at the time of her discharge, the conditions presented for consideration did not adequately allow the Board to apply mitigation to the distribution of narcotics. Relief is denied.  

The Board considered the Applicant’s overall capacity to serve; her entire military performance and conduct; her post-service mental health diagnosis; the mitigation outlined within the application to apply to her misconduct and her mental/emotional stability; and the severity of her misconduct in relation to his discharge characterization.  The Board did not find a change in characterization of service to be appropriate given the Applicant’s decision to engage in the behavior posed significant risk to others and the Force. 

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

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

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

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

MEDICAL BOARD MEMBER OPINION 

1.	Does the available record reasonably support PTSD (or other boarded mental health condition) existed at the time of applicant’s military service?	No	
2.	A.	Were these conditions present at time of misconduct?	NA	
	B.	Were these conditions mitigating for the misconduct?	No	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Unknown	
4.	Medical board member comments:	Fixed wing aircraft mechanic.  Served 29 October 2007 to 19 July 2011. BCD for misconduct, special court martial.  Claims sexual harassment, sexual assault, PTSD.  Art 80 wrongfully distributed ecstasy; Art 112a, wrongfully entered base with controlled substance.  No mental health during service, did not report sexual assault or harassment.  Sought help 2018. Medical officer opinion is that there are no grounds for an upgrade. Claims bought ecstasy for a friend, was caught bringing onto base.  Misconduct was premeditated and not mitigated by PTSD, sexual assault or harassment claim.  Can find no nexus between mental health, misconduct. 	

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

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  BAD CONDUCT, the narrative reason for separation shall  COURT-MARTIAL with a corresponding separation code of jje2, and the reentry code shall  RE-4B.  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.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

Employment/Educational Opportunities: The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: The NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE-CODE” is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct: DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades: There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & (d)(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

Post-Service Conduct: The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate that in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to: Secretary of the Navy Council of Review Boards, Attn: Naval Discharge Review Board, 720 Kennon Street SE Rm 309, Washington Navy Yard DC  20374-5023.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text 274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.