ex- 2NDLT, 

Current Discharge and Applicant’s Request

Application Received: 20220831
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
Authority for Discharge:   SECNAVINST 1920.6C 

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

Summary of Service
Prior Service:
Inactive: NONE		Active:	

Period of Service Under Review:
Date of Appointment:  20160527	Age:  22
Years Contracted:  Indefinite
Date of Discharge:  20190331	Highest Rank:  2NDLT
Length of Service:   Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  
Officer’s Fitness reports:  Available
Awards and Decorations (per DD 214):	Rifle  (2) Pistol  NMCAM NDSM GWOTSM 

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

SCM:    SPCM:    CIVIL ARREST:   CC:   Retention Warning Counseling:  NONE

NJP:  1

- 20171129:	Article 133 (Conduct unbecoming officer) 
	Article 134 (General article) Firearm, discharging willfully
	Awarded: PUNITIVE LETTER OF REPRIMAND   Suspended: NONE  

Administrative Corrections to the Applicant’s DD 214

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

	  “SECNAVINST 1920.6C”
	
The NDRB will recommend to Commander, Navy Personnel Command or 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.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
SECRETARIAL REVIEW AUTHORITY DIRECTED DECISION

On 17 April 2023, the Secretarial Review Authority (SRA) set aside the NDRB’s Decision to change the Applicant’s Discharge to HONORABLE; and directed the Applicant’s discharge shall remain GENERAL UNDER HONORABLE CONDITIONS.

On 6 January 2023, following a Documentary Review of the available evidence, to include the Applicant’s issues, summary of service, service record entries, and discharge process, the Board found the awarded characterization of service should change to Honorable.  However, the SRA disagreed with the NDRB’s decision.  

The stated reasons for the SRA decision were as follows: 

I [SRA] disagree with the Board’s decision to grant relief on the sole issue presented—I find the misconduct serious such that awarded General (under Honorable conditions) discharge is warranted.  The Applicant’s records show he received non-judicial punishment for violation of Articles 133 and 134 of the Uniform Code of Military, and it was this misconduct which served as the basis for the Applicant’s separation.  In short, on 20 and 21 September 2017, the Applicant committed serious misconduct and attempted to cover-up his actions.  According to the Command Investigation, at approximately 2130 on September 20, 2017, the Applicant admits to being intoxicated, and discharging a firearm with his roommate, in the backyard of their residence in 29 Palms, California.  When local law enforcement went to the Applicant’s home and questioned him about gunfire in the area, he denied hearing gunfire.  Later in the early morning hours of September 21, 2017, the Applicant’s roommate was escorted, by Police, back to the home after he had passed out outside of a neighbor’s home.  When the Police arrived at the Applicant’s home, they were met with loud music, and the front and back doors of the home were open.  Police saw the Applicant sitting at the kitchen counter with a handgun (a Glock 17 model, 9mm semiautomatic) visible on the counter.  The handgun was in condition 3, with 6 rounds in the magazine.  The police then observed multiple bullet divots in the backyard dirt, and brass casings in the trash.  After the Police’s search, the Applicant admitted to firing a gun in the backyard earlier in the evening.  By his own admission in the addendum page of his March 13, 2018 FITREP, the Applicant admitted to being dishonest with law enforcement.  As a result of his misconduct, the Applicant did not deploy with his unit, thus impacting the operations and affairs of the Marine Corps.

The Applicant raised several arguments as to why his characterization of service should be upgraded to an Honorable.  Since his initial denial to law enforcement in the early morning hours of September 21, 2017, the Applicant contends he has taken responsibility for his actions and has expressed remorse for his misconduct.  The Applicant contends that his post-misconduct service is meritorious and should be considered—before he was separated he deployed to the border of United States and Mexico and for that duty he received a Marine Corps Achievement medal.  The Applicant also contends that his discharge, should not be characterized similarly to that of his roommate, who had a second alcohol related incident shortly after the 20/21 September 2017 incident.  The Applicant submitted character statements attesting to his good character, and he also referenced recommendations from his chain of command while on active duty that indicated he should be retained in the service.  Further the Applicant asserts that a collateral consequence of his discharge—a pro-rata recoupment of his Naval Academy tuition—is unjust and inequitable.  The Board found the Applicant’s arguments persuasive.  

In considering the Applicant’s case, I [SRA] also considered the guidance issued under references (f) [Wilkie Memo].  Reference (f) provides in part that, “[m]ilitary custom and practice is to honor sacrifice and achievements to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances in situations in which individuals have paid for their misdeeds.”  Reference (f) further provides that, “[a]n honorable discharge characterization does not require flawless military service.  Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.”  Additionally reference (f) provides that, “[r]elief is generally more appropriate for nonviolent offenses than for violent offenses.”  Lastly reference (f) provides a list of several factors that should be considered when determining whether to grant relief on the basis of equity, an injustice, or clemency, those factors include, but are not limited to:  an applicant’s candor; whether the punishment, including any collateral consequences, were too harsh; severity of misconduct; character and reputation of the applicant; length of time since misconduct; meritorious service in government or other endeavors, and evidence of rehabilitation. 

In considering the guidance of references (b) [SECNAVINST 5420.174E], (c) [SECNAV M-5420.1], and (f) [Wilkie Memo], I [SRA] found that relief is not warranted, at this time, on the basis of equity, injustice, or clemency.  The Applicant’s remorse, positive recommendations, and post-misconduct service weighed in favor of relief.  But, considering the severity of the misconduct—the irresponsible use of a firearm and dishonesty to law enforcement—the Applicant’s mitigating factors does not outweigh the misconduct such that the awarded characterization of service is neither unjust nor inequitable, and clemency is not warranted.  Further, in light of the misconduct, I did not find the collateral consequences—repayment of an educational debt—to be a compelling ground to grant clemency.  The Applicant did not provide evidence of his post-service activities.  
 
In summary, the SRA set aside the NDRB’s decision and directed the Applicant’s discharge shall remain GENERAL UNDER HONORABLE CONDITIONS.  

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Applicant’s Issues

1.	The Applicant contends that his discharge characterization is unjust and unduly harsh given the level of misconduct committed in relation to the contributions and service he afforded during his active duty tenure. 

Discussion

Date:  20230106		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.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 133 (Conduct unbecoming officer) 
Article 134 (General article)

:   The Applicant contends that his discharge characterization is unjust and unduly harsh given the level of misconduct committed in relation to the contributions and service he afforded during his active duty tenure. 

The Applicant contends that he is deserving of an upgrade given the unduly harsh punishment that associates with his administrative separation. In addition, the Applicant highlights that the misconduct committed was isolated and an uncharacteristic lapse in judgment. Specific to the Applicant’s petition is the mandate for recoupment of the pro rata share of his Naval Academy tuition and expenses. The Applicant states that his punishment is disproportional to the misconduct and that his performance after the incident, which included being awarded a Navy Achievement Medal, and retention recommendations of his Commanders, substantiate that he was deserving of being retained and that he generally met acceptable standards of conduct and performance. The Applicant’s misconduct which consisted of illegally discharging a weapon in the back yard of his rental property, followed by him not being forthright with investigating police officers. This act constituted a violation of discharging a weapon within the city limits of 29 Palms, CA and addressed through NJP and processing for administrative separation.  

A review of the record, which included a command investigation, confirmed to the Board that the Applicant was involved in the cited misconduct.  In addition, the record reflects the Applicant’s accountability of his participation and his remorse with the ignorance he exercised by discharging a weapon in a location where it is prohibited by law. While acting with ignorance does not relinquish accountability, the record does support that the Applicant’s actions did not involve malice, intent to hurt or injure anybody and that his behavior was uncharacteristic, isolated and atypical of his judgment. A review of the command investigation, and comments within the administrative separation package, reflect that the Applicant’s role in the incident is exacerbated by his roommate’s behavior. Also a Marine Officer, this individual continued to perpetrate additional misconduct that same evening despite the involvement of law enforcement addressing the incident involving the Applicant. The continuation of the independent unbecoming conduct of his roommate that same evening is what ultimately led to the final actions taken by law enforcement. The Applicant did not play a role in the continued malfeasance of his roommate, but it was this behavior that contributed to law enforcement’s decision to apply charges.

The Board also strongly accounted for the recommendations of his leadership that included his Regimental Commander recommending retention.  The NDRB also accounted for the Applicant’s remorse and efforts to demonstrate the ability to rehabilitate and continue to be trusted. His completion of personal improvement programs and counselling, as well as meritorious performance in a real world operation, substantiate the Applicant’s commitment. Given that the Applicant’s record reflects no other misconduct or any issues that would challenge his dependability, the NDRB did find the administrative separation and assigned discharge to be unduly harsh. A means to recover and complete his obligated service was tenable, and the Applicant displayed a willingness to continue serving and be a dependable and trusted officer. Given the inequitable consequences of this discharge, the NDRB unanimously voted to grant relief and upgrade the discharge characterization to 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.  

When reviewing discharges, the Board considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  In this case, the Board found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  In making its determination, the Board did account for the totality of the Applicant’s misconduct in relation to the complete disposition of the assigned discharge characterization. Given the isolated nature of the incident and the Applicant’s demonstrated record of performance and reliability, the NDRB assessed that the discharge was inequitable as the limited nature of the misconduct did not establish grounds enough to substantiate that the Applicant could no longer effectively serve. 

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  MISCONDUCT (OTHER) with a corresponding separation code of JKM,  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.