ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received:  20220425
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT] 

Applicant’s Request:  Characterization change to:  
Narrative Reason change to:  REQUESTED, BUT NOT SPECIFIED
Reentry Code change to:  REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:   	            	Active:   20020205 - 20050531 HON

Period of Service Under Review:
Date of Enlistment:  20070724	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100209	Highest Rank/Rate:  LCpl
Length of Service:  02  Year(s)  06  Month(s)  17  Day(s)
Education Level:  12	AFQT:  27
Deployment/Operation:  

Evaluation Marks (# of occasions):  Performance/Proficiency:  3.0 (NFIR)   Behavior/Conduct:  3.0 (NFIR) 
Fitness Reports:  

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

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

SCM:    SPCM:    CIVIL ARREST:    CC:   

NJP:  3

- 20081008:	Article 86 (Absence without leave, etc.) 2 specifications
	Article 92 (Failure to obey order, regulation) 2 specifications
	Awarded: FOP RESTR
	Suspended:  NONE

- 20081208:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 123 (Forgery)
	Awarded: RIR RESTR EPD
	Suspended:  RIR

- 20091117:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 92 (Failure to obey order, regulation)
	Article 134 (General article) Restriction breaking
	Awarded: RIR FOP RESTR EPD
	Suspended:  FOP

Retention Warning Counseling:  5

- 20080715:	For lack of judgment and blatant disrespect toward NCO and SNCO.  On 20080624, SNM was counseled by an NCO for unauthorized absence.  During the counseling SNM walked away, when asked by her SNCOIC what was wrong, SNM ignored him disrespectfully. 

- 20080813:	For lack of judgment and blatant disrespect toward DNCO/NCO.  On 20080806, SMN had a verbal altercation with the DNCO, at that time SNM was given a direct order to leave and was told the situation would be resolved at a later time.  SNM refused to follow the orders and continued to argue disrespectfully.  As the situation escalated, another NCO gave SNM a verbal order to follow the orders given by the DNCO, immediately SNM became confrontational, belligerent, and disrespectful with the NCO.  

- 20081008:	For recent Company level NJP for violations of articles 86 x2 and 92 x2 of the UCMJ.  

- 20090717:	For violation of article 128 of the UCMJ, assaulted her roommate by throwing her to the ground after an argument between the two had escalated.

- 20091117:	For recent Battalion level NJP for violations of articles 91, 92 and 134.  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	   “2007 07 24”
	   “MISCONDUCT”

The NDRB will recommend to Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

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

Additional Statements

	From Applicant:		From/To Representation:		From/To Congress member:	

Types of Witnesses Who Testified

	Expert:  			Character:   

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

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 6 June 2007 until 26 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 contends that her characterization of service, the narrative reason for separation, and separation code are inequitable because her mental health condition mitigated the misconduct.
2	The Applicant contends that her characterization of service, the narrative reason for separation, and separation code are inequitable because her infractions were minor in light of her overall good service record.
3.	The Applicant contends that her characterization of service, the narrative reason for separation, and separation code are improper and inequitable because they violated the Military Whistleblower Protection Act.

Discussion

Date:  20230217		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.  The Applicant’s service record documents completion of a deployment from February 2004 to February 2005 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 Uniform Code of Military Justice (UCMJ):
Article 86 (Absence without leave, etc.)
Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer)
Article 92 (Failure to obey order, regulation)
Article 123 (Forgery)
Article 134 (General article)

:  The Applicant contends that her characterization of service, narrative reason for separation and separation code are inequitable because her mental health condition mitigated the misconduct.  The Applicant is seeking an upgrade to her service characterization of Honorable. 

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 partially 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, Adjustment Disorder, Paranoid Personality Disorder	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	Yes	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	The member was not diagnosed with TBI or PTSD during service.  All required mental health and/or medical evaluation appear to have been conducted in accordance to regulations. 	
4.	Medical board member comments:	Motor Vehicle Operator.  Served 23 July 2007 to 9 February 2010.  OTH pattern of misconduct.  NJP x3 UA, Disobey lawful order; wrongful assault; forgery; insubordination; failure to obey; broke restriction.  5 retention warnings.  Claims PTSD, sexual assault mitigating.  DR 2012 5-0 no change.  No mental health in Army.  First mental health in Navy 22 October 2008 adjustment disorder, borderline traits, rule out PTSD.  2 December 2009 diagnosed with paranoid personality disorder and adjustment disorder.  No diagnosis PTSD in service.  VA diagnosed with PTSD.  Was being recommended for administrative separation for adjustment disorder when separated for POM.  Has more than one incident of misconduct, no PTSD diagnosis, history of paranoid personality disorder.  Applicant was upgraded from OTH to General at last document review.  Medical officer opinion after reconsideration of this case is that the evidence does not support an upgrade to Honorable.  The evidence does not support nexus between violent misconduct and PTSD.  However, can see upgrade to general appropriate for Applicant’s non-violent misconduct due to personality disorder, and adjustment disorder CND and upgrade to general, keep narrative and based on liberal consideration.  Due to the extent and violent nature of misconduct cannot get to Honorable.

When reviewing discharges, the Board considers the standards for determining the 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 performance and conduct certainly fell within the category of conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  However, after applying liberal consideration, the Board held that the Applicant’s service should be re-characterized as General (Under Honorable Conditions).  Reviewing the record, the Applicant received three battalion-level NJPs, one Company Level NJP, and five retention warning counselings.  Per the Applicant’s record, submitted legal brief, and treatment records, the Applicant’s four NJPs included three violent assault and battery incidents.  By her own admission, the Applicant assaulted a Corporal and then spat in his face three times, choked a fellow Marine during a dispute that erupted during a field exercise, and physically attacked her roommate and threw her to the floor, which resulted in the Base Provost Marshal Office (PMO) having to be called.  The Applicant claims PTSD, resulting from her multiple sexual assaults in the Army, and her experience in OIF and harassment she suffered in the Marine Corps, mitigates her misconduct.  In her statement, the Applicant contends that another soldier stalked her.  The male soldier was an E-4 Specialist assigned to another unit.  As a non-NCO outside of her unit, he had no lawful authority over her, but the Applicant stated that she felt pressured by her roommate and Army First Sergeant to move out of the barracks and in with this male soldier, which she did within one month of arriving at Fort Hood.  Per Exhibit 15 of the Applicant’s submission to the Board, the Assessment Report from Dr. E. D. stated that the Applicant’s “MST is somewhat perplexing given the described context in which it took place.  Specifically, the veteran reported having had consensual sex with the perpetrator on at least one occasion after she voluntarily moved into an apartment with him.  She also reported having willingly brought the perpetrator to her mother's home, where he reportedly raped her for the first time on Christmas morning of 2003 and introduced him to her family as her fiancé.”

Concerning the application of liberal consideration, the Board could not find any record of the Applicant seeking or receiving mental health treatment in the Army.  However, the Board did find a history of mental health treatment during her time in the Marine Corps.  On 22 October 2008, the Applicant was diagnosed with adjustment disorder and borderline traits, but not PTSD.  The Applicant’s 28 Oct 2009 diagnosis by LCDR T. USN at NMC San Diego documented that the Applicant “states that her command is continuously setting her up for behavior problems and believes they are plotting against her.”  He further assessed the Applicant and reported that “she presents with delusional thinking and increased bizarre behaviors.” That diagnosis was followed by an additional one on 2 December 2009 when the Applicant was diagnosed with paranoid personality disorder and adjustment disorder.  The Board was unable to find any diagnosis of PTSD in service.  Dr. E.D. also wrote that the clinical observation suggested that the Applicant demonstrates behaviors that may be indicative of narcissistic or borderline personality disorder and that regarding narcissistic personality disorder features, the Applicant described herself as getting into conflict and competition with individuals who are "not as bright" as she is, including many of her superiors in the military.  Following her separation, the Applicant was diagnosed by the VA with PTSD.  The Applicant was recommended for administrative separation for adjustment disorder when she was separated for a pattern of misconduct.

Applying liberal consideration, the Board found that there were grounds for a partial upgrade for her non-violent misconduct.  However, there was insufficient evidence to support a mitigating nexus between the Applicant’s misconduct and the specific diagnosis of PTSD, but did find (after applying liberal consideration) that the Applicant’s behavior was consistent with the diagnosis of a personality disorder.  The Board was mindful of the fact that liberal consideration, as outlined in Kurta, does not mandate an upgrade and that the Wilkie Memorandum, paragraph 6.k. states that “Relief is generally more appropriate for nonviolent offenses than for violent offenses.”  In essence, there was insufficient evidence to find that the severity of the Applicant’s mental health rose to such a level as to make her not responsible for attacking and injuring other individuals.  The Applicant was involved in three violent offenses while on active duty.  Since separating, the Applicant has been involved in two more.  Per Exhibit 16, the Clinical notes of Dr. E. B. 22 October 2010, while at Chelsea Soldier's Home in the summer of 2010, the Applicant “threw a bowl of noodles at another resident with whom she had a disagreement.”  Later, at the New Bedford Transitional House, the Applicant “felt threatened by what she perceived as homosexual advances” and threw a glass at the other veteran, which broke on impact.  The Applicant was then forced to leave the house.  

Thus, weighing (using the scales of liberal consideration) the Applicant’s overall performance and conduct against the standards for characterization of service, the Board held that the Applicant’s mental health issues mitigated but did not completely exonerate her attacking/injuring other people and that a change in the characterization of service to General (Under Honorable Conditions) was appropriate.  The Board did not grant full relief to Honorable, as the Board did not find that the severity of the Applicant’s mental health (whether based on Personality Disorder/PTSD/MST) rose to such a level as to exonerate her of all culpability.  In other words, the Applicant’s mental health status did not give her a blank check to attack people at will without repercussion/ punishment/ deterrence.  In making its determination, the Board considered the Applicant’s overall capacity to serve; her entire military performance and conduct; her mental health diagnosis; the nexus between her mental/emotional stability; and the severity of her conduct in relation to his discharge characterization.  Partial relief is granted.

Finally, 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 a re-characterization of General (Under Honorable Conditions) to the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances; especially, considering the violent and repetitive nature of the Applicant’s misconduct. 

: The Applicant contends that her characterization of service, the narrative reason for separation, and the separation code are inequitable because her infractions were minor in light of her overall good service record.

The Applicant makes several claims to support the contention.  The first cited in her legal brief from Exhibit 2, the VA Decision states:

The few instances of record were all handled at the lowest possible level, "non-judicial punishment." There is absolutely no evidence of referral to Courts-Martial.  For that matter there is no evidence 
that veteran was afforded the mandatory rights under MARCORSEPMAN rules, in that there should have been an admin separation due process package before she could have been given an Other Than Honorable discharge.  The record thus inures in her favor.  Furthermore, each of the purported offenses are uniquely military offenses, in that she did not violate any civilian laws or cause any injury or undue harm on any person including herself.  Due to the preponderance of evidence in the veteran's favor, her service is hereby found to be Honorable for VA purposes.

This statement is incorrect and displays a lack of understanding of the UCMJ and the military justice system.  The VA is its own department and is free to make its own assessments for its own purposes.  The Applicant did have an honorable enlistment in the Army, which qualifies her for VA benefits.  However, the Applicant’s “instances of record” were not handled at the lowest possible level.  The lowest possible level would be informal counseling entered in a Marine’s Mentoring Jacket which would not then become part of his/her OMPF.  The second lowest level would be official counseling entered into the service member’s permanent record in accordance with MARCORSEPMAN 1900.16-6105.  This happened to the Applicant five times.  The Applicant was charged with court-martial offenses under the UCMJ four times.  Those violations were handled at the second highest level possible, Non-judicial Punishment (NJP).  For a service member to be offered NJP, he/she must first be charged by a court-martial authority.  The commander/court-martial authority may choose to offer NJP as an act of mercy or in the interest of justice to prevent a service member from possibly receiving a Bad Conduct Discharge (BCD), which would result in a federal conviction on his/her record for life.  Service members can always exercise their right to demand a trial by court-martial.  Violence was involved in three of the four times the Applicant was charged with UCMJ violations.  Contrary to the statement by the VA, assault, and battery violate civilian laws and are not a “uniquely military offense.”  Although the Applicant’s OMPF does not have her Administrative Separation package in it, it does have her two counselings where she was advised that she was being separated with an Under Other than Honorable characterization of service and that she was receiving a reenlistment code of RE-4.  In both instances, the Applicant signed that she understood and declined her right to make a rebuttal.

The Applicant also states three times in her legal brief that she was shot in the neck while serving in the Army in OIF.  The Board recognizes the Applicant’s honorable service in the Army and the real stress and danger that deploying in support of OIF entails.  However, there is no record of a Purple Heart on either of the Applicant’s DD214s nor any record of her receiving medical treatment for a gunshot wound to the neck.

Finally, the Applicant states in her legal brief on pages 15 and 22 that she earned a Good Conduct medal during her time in the Marines.  The Applicant served two years and six months and 17 days total in the Marine Corps and received NJP four times.  To receive the Good Conduct Medal, a Marine must serve three years without any NJPs; here, the Applicant did not.  Further, the Applicant’s DD214 Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) does not list a Good Conduct Medal.  Relief denied on this issue.

:  The Applicant contends that her characterization of service, the narrative reason for separation, and separation code are improper and inequitable because they violated the Military Whistleblower Protection Act.

The Applicant was already pending administrative separation for her mental health issues when she was assessed at Balboa Naval Hospital on 28 October 2009.  Per her medical record, the Applicant told the attending physician, LCDR T., that she was in agreement with the recommendation for administrative separation, given her repeated inability to function in this environment and that she felt that she would be able to cope with her frustrations in a safe manner, given her understanding that she would soon be released from military service.  This conversation occurred 18 days after the Applicant wrote her Congresswoman.  That same morning, the Applicant’s command searched her barracks room and found six knives that were illegal for her to have in the barracks.  The following month, the Applicant received NJP again.  After four NJPs and Five Retention Warning Counselings, the Applicant’s command decided to pursue the more expeditious administrative separation for a Pattern of Misconduct.  Although the Applicant contends that she suffered reprisals from her command for writing her Congresswoman, she was still offered NJP, which she accepted.  The Applicant’s Commanding Officer could have held a summary court-martial or requested a special court-martial with his commander and sought a Bad Conduct Discharge.  Instead, after the Applicant pled guilty to the charges at NJP, her Commander suspended the Forfeiture of Pay punishment to ease the burden on the Applicant.  Despite the Applicant’s numerous disciplinary incidents, her Command routinely charged her with lesser offenses under the UCMJ (e.g. she was only charged with Article 91 vice Article 91 and Article 128 for assaulting and spitting on a NCO, and she was not charged with Article 128 for the incident where she states that she choked another Marine in the field), and the Applicant’s Command also supported her seeking mental health treatment.  In summary, the Board did not find evidence that the Applicant was denied due process in her administrative separation or subjected to reprisals for executing her rights.  Relief denied on this issue.

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 partial .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKA1, 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.  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.