Title: NDRB Decisional Document
Author: Fajfar, Kyle D SSgt USMC USN DIRSECNAVCORB DC (USA)
Last saved by: Lugo Melendez, John P Sgt USMC (USA)
Company: NDRB

Docket No. MD22-4178

ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20220521
Characterization of Service Received:   
Narrative Reason for Discharge:   COMPLETION OF REQUIRED ACTIVE SERVICE
Authority for Discharge:   MARCORSEPMAN 1005 [COMPLETION OF SERVICE OBLIGATION] 

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:  20060724	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20110923	Highest Rank/Rate:  Cpl
Length of Service:  05  Year(s)  02  Month(s)  00  Day(s)
Education Level:  12	AFQT:  66
Deployment/Operation: 

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

Awards and Decorations (per DD 214):	Rifle (2) Pistol (3) SSDR(2) ACM(W/1 BRONZE SERVICE STAR) ICM(W/1 BRONZE SERVICE STAR) GWOTSM NDSM NUC NATO MM 

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

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  4

- 20070125:	Article 92 (Failure to obey order, regulation) 
	Awarded: FOP    Suspended:  

- 20070831:	Article 92 (Failure to obey order, regulation) 
	Article 134 (General article)
	Awarded: RESTR EPD FOP   Suspended:  

- 20081013:	Article 92 (Failure to obey order, regulation) 
	Awarded: FOP    Suspended:  NONE

- 20110622:	Article 92 (Failure to obey order, regulation) 
	Article 95 (Resisting apprehension, flight, breach of arrest, escape)
	Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)
	Awarded: FOP    Suspended:  FOP

Retention Warning Counseling:  5

- 20070125:	For violation of Article 92. 

- 20080219:	For lack of respect towards noncommissioned officers, lack of maturity and weapons accountability. 

- 20080624:	For failure to obey regulation dealing with consumption of alcohol while under the age of 21.  

- 20080915:	For violation of Article 92.

-20100108:	For public intoxication. 

NDRB Documentary Review Conducted (date):	20190625
NDRB Documentary Review Docket Number:	MD19-00128
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

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

Additional Statements

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

	Expert:  			Character:    

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

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16F ch2), effective 06 June 2007 until 25 November 2013, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION.

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 claims that his mental health condition was a mitigating factor in his misconduct.

Discussion

Date:  20230315		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (NDRB), under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

As a result of the Applicant’s claim of a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  
Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  The Applicant’s service record documents completion of a deployment in support of Operation IRAQI FREEDOM and Operation ENDURING 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 92 (Failure to obey order, regulation) 
Article 95 (Resisting apprehension, flight, breach of arrest, escape)
Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel)
Article 134 (General article)

Issue 1.	The Applicant claims that his mental health condition was a mitigating factor in his 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 mitigated the discharge; b) the condition existed during military service; c) the condition/experience mitigated the underlying basis/misconduct for the discharge; and d) the condition/experience outweighed the Applicant’s assigned Discharge Characterization.  

MEDICAL BOARD MEMBER OPINION 
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 – Major Depressive Disorder/PTSD, Alcohol Use Disorder (severe), (military/VA)
A.	Were these conditions present at time of misconduct? | Yes (varying degrees)
B.	Were these conditions mitigating for the misconduct? | Yes (See below)
Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant? | Yes

Medical board member comments:

Reviewed the Applicant’s treatment and service records in addition to personal appearance testimony on 16 March 2023.

The Applicant, a Marine veteran with a history of two combat deployments, was separated at the completion of his enlistment with a characterization of General under Honorable Conditions.  In rebutting his discharge characterization, the Applicant contends that his misconduct was influenced by service-connected PTSD and TBI.  Post-discharge, the Applicant has been awarded 100% service-connected disability by the VA (100% for Major Depressive Disorder).

Brief timeline:
24 Jul 2006 – Enlistment
25 Jan 2007 – NJP (Art 92)
31 Aug 2007 – NJP (Art 92, 134)
3 Oct 2007 – 28 Apr 2008 – OIF Deployment
29 Sep–10 Oct 2008 – Outpatient Alcohol Rehabilitation (SARP Level 1)
13 Oct 2008 – NJP (Art 92)
11 Dec 2009 – Public Intoxication/Victim of assault (BAC .252)
20 Nov 2010 – 17 Jun 2011 – OEF Deployment
10 Jan 2011 – MATV crash/concussion
19 May 2011 – RPG incident
22 Jun 2011 – NJP (Art 92, 95, 111)
Jun – Jul 2011 – Inpatient Alcohol Rehabilitation (SARP Level III)
23 Sep 2011 – Discharge
------
Apr 2012 – Hospitalization in VA
Oct 2012 – Hospitalization in VA
Sep – Oct 2014 – Inpatient substance abuse rehabilitation (VA)
Mar 2015 – Inpatient substance abuse rehabilitation (VA)
Aug 2016 – Hospitalization in VA
Feb – Mar 2017 – Hospitalization in VA
Mar 2018 – Hospitalization in VA
Oct 2018 – Hospitalization in VA

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

1.	I found evidence of significant pre-service alcohol use, likely indicating some degree of abuse/dependence prior to enlistment.  This use was further magnified by the Applicant’s 2 ARI’s prior to his first deployment. 
2.	The Applicant’s 1^st deployment (Iraq) appears to have been fairly non-kinetic.  However, the Applicant incurred more ARIs following return.  Given the degree of impairment illustrated by the Applicant’s alcohol use in the OMPF, I question the decision to only utilize Level I SARP.  However, per his testimony, the Applicant may have minimized his drinking and given a false impression of occasional abuse as the reason for his ARIs.  Importantly, however, the Applicant’s command continued to use him in Battalion-level exercise and fully intended to deploy him a second time (allowed an extension).  This information indicates the value the Applicant’s work at his command.
3.	Evidence shows the Applicant’s 2^nd deployment (Afghanistan) was very kinetic.  The Applicant’s combat exposure included an MVC and RPG attack, both of which appeared to have inflicted lasting physical and mental trauma.  Post-deployment (within hours of returning), the Applicant learned of marital infidelity (wife and his friend), driving his already fragile mental state into an increasingly fractured existence.  Given his strong alcohol history, it was not surprising that his alcohol use reached severe levels.  I find the combination of likely PTSD, possible TBI, and family strife.
4.	Post-discharge, the Applicant suffered continued decline in his mental health, culminating in polysubstance abuse, 12+ suicide attempts, homeless, and frequent hospitalizations for various reasons.  
5.	As stated in the Kurta memo, "[l]iberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct associated with mental health conditions, including PTSD; TBI... and some significant misconduct sufficiently justified or outweighed by the facts and circumstances."  Though the Applicant incurred multiple, significant acts of misconduct, under liberal consideration guidelines, I find compelling evidence that his service-connected mental and neurological health played a significant role.  The command’s willingness to allow this Applicant to finish his contract, despite strong evidence of dysfunctional alcohol use, buttresses my belief that they supported him.  Couple this information with his two combat deployments, I believe the Applicant performed honorably in the Marine Corps despite multiple, life-changing setbacks.

Based this information, I find a mitigating nexus between the Applicant’s misconduct and his mental health.

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

In this case a review of the Applicant’s official record shows multiple combat deployments in his five year career in the Marine Corps. Although the Applicant had multiple nonjudicial punishments related to alcohol abuse, the command retained him and deployed him to combat twice. The Applicant’s record also shows that he discovered the loss of over $10,000 worth of optics equipment while in service. This loss was due to other Marines in the unit stealing and selling the equipment. These actions, along with the numerous letters of support show a dedicated Marine that was a high performer. Unfortunately, due to numerous personal issues related to his marriage and his PTSD, he had numerous alcohol related incidents. However, the NDRB was able to find mitigation in the fact that he completed his entire enlistment, deployed to both Iraq and Afghanistan, and uncovered the theft of costly equipment. Additionally, the NDRB was able to draw a nexus between the Applicant’s misconduct and his mental health. Given the conduct of the Applicant, and given liberal consideration in accordance with both the Wilkie and Kurta memos, the NDRB determined that an upgrade was warranted in this case.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  HONORABLE, the narrative reason for separation shall  COMPLETION OF REQUIRED ACTIVE SERVICE with a corresponding separation code of MBK1, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

ADDENDUM:  Information for the Applicant

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

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

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

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

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water