ex- PFC, 

Current Discharge and Applicant’s Request

Application Received: 20220310
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge:   MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	 

Period of Service Under Review:
Date of Enlistment:  20161205	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20190430	Highest Rank/Rate:  LCpl
Length of Service:  01  Year(s)  11  Month(s)  25  Day(s)
Education Level:  12	AFQT:  72
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.7 (NFIR)   Behavior/Conduct: 3.7 (NFIR)
Fitness Reports: 

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

Periods of UA:  20180810 - 20190107, 151 days
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  1

- 20190124:	Article 85 (Desertion) 
	Awarded: FOP    Suspended:   

Retention Warning Counseling:  1

- 20190124:	For violation of Article 85. 

NDRB Documentary Review Conducted (date):	20210103
NDRB Documentary Review Docket Number:	MD21-00346
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.  Paragraph 6210.6, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 26 November 2013 until present.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 85.  

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant contends that the misconduct that led to his administrative discharge is mitigated by mental health and TBI issues he suffers from. 

Discussion

Date:  20220823		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 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.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 85 (Desertion) 

:   The Applicant contends that the misconduct that led to his administrative discharge is mitigated by mental health and TBI issues he suffers from.    

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.  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 Board did find the misconduct warranted an UOTHC as his desertion was a significant departure from the standards of conduct.  However, the Applicant was not afforded due process and the Separation Authority did not afford the Applicant the opportunity to exercise rights he is obligated to.  Thus considering the magnitude of the impropriety, and what it denied, the Board determined that an upgrade to General was warranted. 

Further, 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 did not mitigate the underlying basis/misconduct for the discharge; and d) the condition/experience did not outweigh the Applicant’s assigned Discharge Characterization, but rather an impropriety did.  

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?	Yes – Adjustment Disorder, Personal History of Physical and Sexual Abuse in Childhood (military); TBI (civilian)	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	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?	Yes	
4.	Medical board member comments:	Reviewed the Applicant’s military and VA treatment records.  I also reviewed the Applicant’s neurological evaluation at the Amen Clinic.

The Applicant contends undiagnosed mTBI and major depressive disorder mitigates his in-service misconduct.

The Applicant was diagnosed with Adjustment Disorder in the period between his NJP for desertion and his separation.  During those visits, concern for possible childhood PTSD surfaced, though the exact connection of this PTSD with the Applicant’s misconduct was never elucidated.  Finally, the treatment files indicate that the Applicant overindulged in alcohol during the final six months of his service.  I was unable to find a workup or diagnosis for mTBI other than mentioned made by the Applicant during his final physical.

Specific review then moved to multiple mental health notes concerning the Applicant’s 151 day UA.  According to various interviews, the Applicant contends that he thought he was going to be accused of belonging to drug a ring on base and sought to flee out of a sense of paranoia to the consequences.  I also reviewed the neuropsychological evaluation submitted.  While I agree with the findings, I do not find sufficient evidence to support the underlying mental health conditions with the Applicant’s planned desertion to avoid prosecution.	

The Applicant contends that the misconduct that led to his discharge is mitigated by mental health issues that he was suffering from and the impact of a military related TBI.  The Applicant was found guilty of violation of Article 85 when he deserted his unit for 151 days. The Applicant cites an undiagnosed depression and anxiety that was compounded by a military TBI impacted his ability to serve and impaired his decision making.  The Applicant states that his medical history during his time in service provide evidence of his struggle to get the help he needed to be an effective service member.  The Applicant did return to his unit where he surrendered himself back into the custody of his command.  Given the serious nature of his desertion, the Applicant was disciplined at NJP and administratively separated with an Under Other Than Honorable Conditions Discharge characterization.  The Applicant provided post-service mental health evaluations that he states confirm the existence of the conditions that he says mitigate his misconduct. 

Most persuasive to the Board, the Applicant was initially notified of his Commander’s recommendation to be administratively separated for a Condition Not a Disability (CNAD) and that the least favorable characterization assigned would be a General (Under Honorable Conditions).  When recommended for separation for reasons associated with a CNAD the characterization for this reason is Honorable unless an Uncharacterized or General (Under Honorable Conditions) is warranted.  The Applicant served more than 180 days and was not eligible for an Uncharacterized discharge.  The separation notification for purposes of a CNAD was acknowledged by the Applicant prior to the recommendation being forwarded to the Separation Authority on 4 April 2019. On 22 April 2019, the Separation Authority approved the Administrative Separation of the Applicant and directed that he would be discharged with an UOTHC and a narrative of Misconduct (Commission of a Serious Offense). 

This decision is not aligned with the recommendation that the Applicant endorsed and the assignment of an UOTHC, without notification; thereby improperly notifying or offering the Applicant his right to accept or waive an administrative hearing.  Given he was recommended for a General discharge characterization for the purpose of a CNAD due to the presence of misconduct, and the Applicant had less than six years of service, he was entitled to an Administrative Separation Board. The record of evidence presents evidence that the Applicant was not afforded due process as he was assigned a lesser characterization and different narrative that he was informed he was eligible of.  Not being afforded his right to an Administrative Separation Panel prohibited the Applicant the opportunity to present issues associated with his mental health challenges for consideration in determining the final disposition of his administrative processing.  

The Applicant’s Commander initially recommended that the Applicant be separated for the Convenience of the Government for a Condition, Not a Disability. This recommendation stems from a medical opinion/recommendation of the Applicant’s ability to effectively serve. His Commander accepted this opinion and stated his belief that the Applicant had a CNAD that impaired his performance and made him unfit for further service. The characterization for this reason is Honorable unless an Uncharacterized or General (Under Honorable Conditions) is warranted. In this case the Applicant’s desertion violation substantiated a significant negative aspect of service. The record of evidence reflects that the Commander’s basis for separation  was not recognized by the Separation Authority.  While a Separation Authority is not bound to a recommendation, the premise for recommendation cannot be changed without accounting for the rights of the service member.  No evidence exists that would lead the Board to believe that the Separation Authority denied a recommendation for administrative separation that would of lead to the resubmission of a recommendation for separation reasons based on Misconduct and an assigned discharge characterization of UOTHC.  This would have afforded the Applicant the ability to exercise or waive his right to an administrative separation hearing. 

The NDRB identified the lack of due process to be a significant impropriety that denied the Applicant the ability to represent himself and his interest in an effort to remain on active duty. In addition, the Board viewed the process to be inequitable as the final disposition was not based on the premise the Applicant was informed of. While the Applicant may have desired to leave active duty, the Separation Authority exercised a lack of authority with his assignment of an UOTHC. The Board did find the misconduct of the Applicant to be egregious and not reflective of the honor, courage and commitment expected of all Marines. While the Board believed that the misconduct itself is deserving of an UOTHC discharge characterization, the assignment was not in compliance with regulations, assigned authorities and the rights of the service member within the administrative separation process. 

In respect to the mitigating conditions highlighted by the Applicant associated with his mental health, the Board did not find means for clemency or full relief.  Through a thorough review of all submitted documentation and the existing record of evidence, the Board identified multiple discrepancies and inconsistencies within the Applicants statements during the enlistment screening process and post-service evaluations. Inconsistencies lead the Board to assess that the Applicant was not forthright within the enlistment screening process. Within the record he denies receiving mental health treatment, attempts of self-harm and a suicide attempt pre-service, but states in post-service documentation contrary statements that describe life-long mental health challenges. The contrast in testimony challenges the integrity of the Applicant given the fact that he did not accurately disclose issues for the service to evaluate in order to assess his fitness for duty. Thus the Board was unable to excuse or lessen the severity of the misconduct based on the issues highlighted by the Applicant. His desertion status is significant misconduct and not reflective of the conduct expected of a U.S. Marine. 

Given all associated facts and circumstances the Board did vote to grant partial relief in the form of an upgrade to General (Under Honorable Conditions). This decision was based on the premise that the Applicant was not afforded due process in the processing of his administrative separation. The inconsistency and convenient application of facts within the Applicant’s submitted statements and documents did not lead the Board to believe that the Applicant’s desertion could be explained other than through willful and conscious misconduct.  However, the impropriety within the assignment of the UOTHC reflects an abuse of authority. Upgrade to General (Under Honorable Conditions) is granted.     

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  CONDITION, NOT A DISABILITY with a corresponding separation code of JFV1, 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.