ex- HM2, 

Current Discharge and Applicant’s Request

Application Received: 20210929
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge:   MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] 

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

Summary of Service

Prior Creditable Service:
Inactive:		            	Active:	 20001025 - 20081014  
				 20081015 - 20101011  

Period of Service Under Review:
Date of Enlistment:  20101012	Age at Enlistment:  30
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20130305	Highest Rank/Rate:  HM2
Length of Service:  02  Year(s)  04 Month(s)  24  Day(s)
Education Level:  12	AFQT:  44
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.75 (12)   Behavior/Conduct: 3.00 (12)   OTA: 3.44 

Awards and Decorations (per DD 214):	Pistol  GCM(2) NUC SSDR(2) GWOTEM ICM GWOTSM ARCOM

Periods of UA:  NONE
Periods of CONF:  Unable to determine
Other Time Lost per DD214:  NONE

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

GCM:  1

- 20121023:	Article 134 (General article) 
	Sentence: CONF 10 days  RESTR 60 days  HARD LABOR 90 days
	CA: NFIR

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should include:  “GOOD CONDUCT MEDAL (2); NAVY UNIT COMMENDATION; SEA SERVICE DEPLOYMENT RIBBON (2); GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL; IRAQ CAMPAIGN MEDAL WITH EGA; ARMY COMMENDATION MEDAL (2); AFGHANISTAN CAMPAIGN MEDAL; NATO-ISAF MEDAL; NATIONAL DEFENSE SERVICE MEDAL; LETTER OF COMMENDATION; NAVY PISTOL MARKSMANSHIP MEDAL (EXPERT); NAVY RIFLE MARKSMANSHIP RIBBON (MARKSMAN)”
	    “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 001025 UNTIL 081014 AND FROM 081015 UNTIL 101011.”
	
The NDRB will recommend to Commander, Navy Personnel Command 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.  Naval Military Personnel Manual, (NAVPERS 15560D), Change 36, effective 18 August 2011 until 30 May 2013, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 134.  

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

Applicant’s Issues

1.	The Applicant contends that he served honorably for more than 12 years prior to his discharge and that his Narrative Reason for Separation and Re-enlistment code were inequitable, as they did not take into account or failed to consider his character of service prior to his incident.
2.	The Applicant contends that post-traumatic stress disorder (PTSD) played a role in one unfortunate incident of misconduct.

Discussion

Date:  20240129		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.  The Applicant’s service record documents completion of three deployments from June to September 2004 and from January to an indeterminate month 2005 in support of Operation IRAQI FREEDOM and from June 2007 to September 2008 in support of 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:

 General Court-Martial (GCM) for  of the UCMJ:  
Article 134 (General article) 

:  The Applicant contends that he served honorably for more than 12 years prior to his discharge and that his Narrative Reason for Separation and Re-enlistment code were inequitable, as they did not take into account or failed to consider his character of service prior to his incident.  The Applicant contends that PTSD played a role in one unfortunate incident of 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 may excuse or mitigate 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

1.	Does the available record reasonably support PTSD (or other boarded mental health condition) existed at the time of applicant’s military service?	Yes/
Navy:  Multiaxial Diagnosis:
Axis I: ptsd;mdd;adjustment d/o
Axis IV: Combat exposure, occupational problems, relational problems
Axis V: Current assessment of global function: 70
VA:  PTSD	
2.	A.	Were these conditions present at time of misconduct?	Yes, to varying degrees.	
	B.	Were these conditions mitigating for the misconduct?	Yes, though less significant to the extent there may be legitimate concern over the legitimacy of the specific charge.	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Uncertain, as recorded, mental health exam issues not particularly robustly explored.	
4.	Medical board member comments:	REQUEST ISSUES INCLUDE:

HISTORY INCLUDES:

PRIOR TO ENLISTMENT:

In re PTSD, “He recounted several upsetting memories from his childhood that he had never remembered before, reinforcing his problems interacting with his mother and her pattern of emotional neglect and sometimes physical abuse.”

NO ETOH/DRUGS
HEAD TRAUMA 5 YEARS EARLIER

25 Oct 2000—ENLISTMENT: @ Age 21

NO PSYCHIATRIC DIAGNOSIS ON AXIS III on 29 Sep 2008 

NO PSYCHIATRIC DIAGNOSIS ON AXIS II on 29 Sep 2008 

ACUTE POST-TRAUMATIC STRESS DISORDER on 29 Sep 2008 

Oct 2008—Alleged CHILD ENDANGERMENT OCCURRENCE. 

POST-TRAUMATIC STRESS DISORDER on 21 Oct 2008

Lower back pain on 28 Jan 2009

ANXIETY DISORDER NOS on 17 Feb 2009 

20 May 2009—PDHRA:
1. Overall, how would you rate your health during the
PAST MONTH
Fair
2. Compared to before your most recent deployment, how
would you rate your health in general now?
Somewhat worse now than before I deployed
3. During the past 4 weeks, how difficult have physical
health problems (illness or injury) made it for you to do
your work or other regular daily activities?
Somewhat difficult
4. During the past 4 weeks, how difficult have emotional problems (such as feeling depressed or anxious) made it for you to do your work, take care of things at home, or get along with other people Very difficult
5. Since…[return]]…how many times have you seen a healthcare provider for any reason…?
6 or more
8. In addition…do you currently have a health concern…related to your deployment?...Yes…
9...Blast or explosion (IED, RPG, land mine, grenade…Fall…Felt dazed, confused, or "saw stars"
10. Since return from your deployment, have you had serious conflicts with your spouse, family members, close friends, or at work that continue to cause you worry or concern?  No
Yes…Bad headaches…Back pain…Problems sleeping…Forgetful…Increased irritability…Knee pain to left and right leg…
11. Since return from your deployment, have you had serious conflicts with your spouse, family members, close friends, or at work that continue to cause you worry or concern?
Nightmares…Tried hard not to think about it…or went out of your way to avoid situations that remind you of it…constantly on guard, watchful, or easily startled? …Felt numb or detached from others, activities, or your surroundings?  [Yes to all] 
12. Have you ever had any experience that was so frightening, horrible, or upsetting that, IN THE PAST MONTH, you ....[yes to all]
a.	Have had nightmares about it or thought about it when you did not want to?
b.	Tried hard not to think about it or went out of your way to avoid situations that remind you of it?
c.	Were constantly on guard, watchful, or easily startled?
d.	Felt numb or detached from others, activities, or your surroundings?
13a. In the PAST MONTH, Did you use alcohol more than you meant to?
b. In the PAST MONTH, have you felt that you wanted to or needed to cut down on your drinking? [NO]
14. Over the PAST MONTH, have you been bothered by the
following problems? [Nearly every day to] 
a. Little interest or pleasure in doing things…
b. Feeling down, depressed, or hopeless
15. Would you like to schedule a visit with a healthcare provider to further discuss your health
concern(s)?
Yes…
16. Are you currently interested in receiving information or assistance for a stress, emotional or
alcohol concern?
Yes …
17. Are you currently interested in receiving assistance for a family or relationship concern?...Yes”
18. Would you like to schedule a visit with a chaplain or a community support counselor?...No
 
Health Care Provider Review reported, Potential TBI with persistent symptoms…Refer for additional evaluation…No
pt referred to military one source for information on counseling family relationships…”

MAJOR DEPRESSION, SINGLE EPISODE MODERATE on 29 Jun 2009

SEGMENTAL DYSFUNCTION OF SACROILIAC REGION on 01 Sep 2009 

ADJUSTMENT DISORDER WITH DEPRESSED MOOD on 08 Dec 2009 

- 201210:	Offense:  Child endangerment for leaving son unattended in bed. 
	Sentence: Member was convicted to a 10-day sentence which served 7 due to good behavior and hard labor.  

Anxiety on 08 Jan 2013
Date Onset: Unknown Date Reported: 08 Jan 2013
Source: Encounter ICD: 300.00
 
a.	INPATIENT/RESIDENTIAL CARE: Hospitalized on 7W in NOV 2012 for SI [Suicidal Ideation] following argument with wife about possible divorce…

11 Apr 2011—STR Entry [265/788]:
“Purpose for visit: Established/Follow-up
Identifying Data:
PO3 … is a 30 y/o DHM AD US Navy, 10 years of continuous service with 3 Combat deployments (2004 Kuwait, Feb2005-Oct2005 Iraq, May2007-June2008 Afghanistan) SM has been stationed at NNMC since 2006 and started working in the CDD-Department 3 months ago. His EAS is in 2014 but he plans or retiring from the NAVY.
Diagnoses:
Axis I: Anxiety Disorder NOS (PTSD and MDD in remission)
Axis II: No Diagnosis
Axis III: None Reported
Axis IV: Occupational stressors, multiple deployments, interpersonal/relationship issues, child custody issues”

13 Feb 2013—Service Treatment Record (STR) entry:
“History of present illness ...
Pt is a 32 y/o Hispanic male, AD USN E-4 with 12 yrs TIS seen for depressive and anxiety sx in the context of poor communication and conflict which his wife, who is currently stationed in Cuba. He was hospitalized in NOV 2012 with SI after they discussed the prospect of divorcing.
Pt went to court on Weds and his wife was unexpectedly there (she had flown up from Cuba). He stated he didn't want to sign the divorce papers at that time. After the trial he apologized to hsi wife for what he'd done wrong in the marriage but she did not really want to talk. He met with CDR Reed yesterday in what was a very helpful conversation for him. Among other things, they discussed the concept of his wife being a partner and not a prisoner and if she did not want to continue in the marriage, he would need to realize how to let her go.
He recounted several upsetting memories from his childhood that he had never remembered before, reinforcing his problems interacting with his mother and her pattern of emotional neglect and sometimes physical abuse.
No SI/HI.
Current medication
Zoloft 200mg daily
Wellbutrin XL 150mg daily (just started) Lunesta 2mg hs PRN
Past medical/surgical history Reported:
Medical: Reported medical history Elevated BPs
Lumbago
No h/o head injury or seizures and psychiatric history
b.	THERAPY: treated for depression in 2003. Also previously treated for PTSD sx, generally resolved except some discomfort in public places
c.	MEDS: Zoloft, Lunesta, Trazodone, Paxil
d.	INPATIENT/RESIDENTIAL CARE: Hospitalized on 7W in NOV 2012 for SI following argument with wife about possible

28 Feb 2013—SEPARATION PHYSICAL conducted by MEB Division, WRNMMC physician:
“SO Note…Chief complaint
The Chief Complaint is: 32y/o Corpsman, works in OR supply, separating next week (05Mar2013), here for separation physical.
History of present illness
The Patient is a 32 year old male.  Did not complete medical history form (DD 2807)
Problems:
-- Panfrequency hearing loss with tinnitus, seen by Audiology 27Feb2013
-- LBP, followed by Chiropractic 6 years ago
-- Positive PPD, s/p INH 8 years ago
-- Mild chondromalacia, left knee by MRI; notes right knee pain with stairs.
-- History sinus disease by CT, on Flonase in the past
-- Headaches, none recently.
-- Depression and Anxiety, followed by psychiatry

1. Basic Life / Disability Examination: Form 2808 completed -- no defects which would prevent separation next week.
2. RHINITIS CHRONIC: AM congestion -- will resume Flonase (on in the past with good result per patient)
3. LUMBAGO: Intermittent with normal exam at recent IM visit with Dr Duboyce. Concerned about renewing Ultram. Will rx with
Naproxyn, refer to pain management.
Medication(s): -NAPROXEN--PO 375MG TAB - 1 TABLET PO BID PRN BACK PAIN #50 RF1 Qt: 50 Rf: 1 Ordered…
Consult(s): -Referred To: PAIN MANAGEMENT MTF BE (Routine) Specialty: ANESTHESIOLOGY Clinic: PAIN
MGMT CL BE Primary Diagnosis: LUMBAGO
4. Patellofemoral syndrome of the right knee: Chondromalacia found on MRI, has undergone PT and steroid injections --
injections did help. Will ask ortho to see for possible re-injection, etc.
Consult(s): -Referred To: ORTHOPEDICS MTF BE (Routine) Specialty: ORTHOPEDICS Clinic:
[NOTE: THE RECORDED MENTAL HEALTH EXAM NOT VERY ROBUST]”

05 Mar 2013 —DISCHARGE:  UOTH/HKQ/RE-4
Length of Service:  12  Year(s)  04 Month(s)  11  Day(s)

POST SEPARATION:

18 Sep 2013—EFFECTIVE DATE of VA DETERMINATION:
“9411-POST-TRAUMATIC STRESS DISORDER(70% SC)” 

04 Sep 2015—[p40/61]:

“SUICIDAL-RELATED IDEATION
Yes, but not within the last 30 days.
Intent to die? Yes
He does not have any current intent to die but he did have the
intent in 2013. He denies any current suicidal ideation and denies
having any thoughts of suicide since 2013.
Identified trigger(s)? Yes
Feeling sad, life stressors.
Detailed plan? No
He has no current plan to harm himself
Plan to thwart rescue? No
No, he will call the crisis line. But he said that if he really got
to a point where he wanted to hurt himself he does not think
anything could stop him because he has no support.
Access to method?
He said he could find a way to do it if he wanted to but that he
does not currently want to.
Owns gun(s)? No
SUICIDAL-RELATED COMMUNICATION
None
SUICIDAL-RELATED BEHAVIOR
He previously had tried to commit suicide by jumping off of
a garage but his ex-wife found him before he could jump. He denies having
any current plan to harm himself.
RISK FACTORS IDENTIFIED (Risk factors may increase likelihood of adverse outcomes): history of physical abuse as a child, gender, history of SI, SA or parasuicidal behavior, chronic pain and/or chronic pain with changes, financial issues, no social support History of previous suicide attempt(s) - a potentially self-injurious behavior with a non-fatal outcome for which there is evidence that the Patient had any intent to kill self, but failed, was rescued or thwarted, or changed one's mind.
Year(s) attempted: 2013
Means used (pills, rope, firearm, knife, poison, etc.
Was trying to jump off of a garage - was found by ex-wife
Manner (OD, hanging, etc):
History of Abuse: Physical
Hopelessness
Insomnia
Post-Traumatic Stress Disorder (PTSD)
Chronic unremitting or acute exacerbation of pain related to any of the
following:
Current pain level: 7 (08/05/2015 10:58)
Migraine
PROTECTIVE FACTORS IDENTIFIED (Can reduce the likelihood of
suicide by enhancing resilience and serving to counterbalance
the risk factors.)
Yes.
Feels responsible for family member or pet
Motivation for treatment
7. ESTIMATED RISK LEVEL:
LOW (Definition: Modifiable risk factors with strong protective factors.
Verbalize occasional thoughts of death but no plan, intent or behavior.)
Document rationale for risk level if different from definition:…
including patient information protected by federal and state privacy laws."
Disclaimer: "The information contained in this document may contain privileged and confidential information
Controlled Unclassified Information (CUI) Page 41 of 61
The patient had a previous suicide attempt in 2013. The patient
denies any current SI, plan or intent and denies any SI since his
attempt in 2013. He feels responsible for his children and appears motivated
for treatment.”

Per 04 Jun 2020—VA Status statement:
 
9411-POST-TRAUMATIC STRESS DISORDER(70% SC) – EFECTIVE DATE 18 SEP 2013
 
04 Oct 2021—DD FORM 293/NDRB APPLICATION for PTSD:

10 Jan 2024—VA entry:
“Reason for Visit: Major depressive disorder, recurrent, moderate
Diagnosis Code Diagnosis Status
F33.1 Major depressive disorder, recurrent, moderate
R68.82 Decreased libido
F52.21 Male erectile disorder
J30.9 Allergic rhinitis, unspecified
G43.009 Migraine without aura, not intractable, without status migrainosus
G44.40 Drug-induced headache, not elsewhere classified, not intractable”

COMMENT:  

Against a formative background including having been the product of unmarried parents, being raised by his mother in Bogota, Columbia,  subsequently repressed memory of childhood physical abuse victimization, immigration to the US 2 years post high school graduation to live with his grandmother,  and, with the influence of his Navy Veteran Uncle, the Applicant enlisted in the Navy in 1999.  His enlistment included the following deployments:  2004- Kuwait, 2005- Iraq, 2007-2008- Afghanistan, including exposure to trauma as noted below with indications of same reflected in his Post Deployment Assessments.  During his first deployment, his wife gave birth to their second daughter only to file for divorce on the Applicant’s return to be followed by an apparently more stressful second, 9 month, deployment to the Korean Village FOB in northern Iraq.  As noted elsewhere, careful review of documents pertaining to the offense leading to the Applicant’s UOTH discharge suggest the offense may not have represented a conduct breach as serious as nominally portrayed.  Moreover, the Applicant’s post service achievements, including despite the burden posed by his UOTH discharge, including becoming a Physical Education Aide and current striving to become a Registered Nurse are noted and numerous other achievements.  Applying Kurta and other related guidance to the extent the Applicant’s attentiveness may have, arguably, been affected by the confluence of mental health related issues and conditions at the time of the offense, a nexus to the Applicant’s mental health related conditions would appear to have existed to the listed diagnoses, even if less than fully exculpating.	

Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of UCMJ Article 134 is one such offense that can result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant was taken to General Court-Martial for child endangerment on 23 October 2012, which concluded on 28 October, and was sentenced to 10 days confinement, 60 days restriction, and 90 days hard labor.  The Applicant did not receive a punitive discharge as part of his sentence and the command pursued an administrative discharge.

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.  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 (UOTHC) 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 evaluating the Applicant’s reported misconduct, the NDRB considered that the Applicant had just returned from a year-plus deployment to Afghanistan to find himself a single parent to his two daughters from a previous marriage, as well as an infant son, whom had been taken from his mother by Child Protective Services due to abuse and entrusted to the Applicant.  Additionally, the second combat deployment from which he had just returned had taken a toll on his mental health and the Applicant, already dealing with documented PTSD stemming from his first combat deployment to Iraq approximately four years earlier, was faced with an illness in his young son which he failed to handle adequately given his compromised mental health.  The Applicant was investigated by civil authorities and taken to trial for child endangerment.  While not convicted, he still surrendered custody of his son due to the attachment issues his son had developed with his foster parents (who eventually adopted him) with whom he had been placed during the three years it took to resolve the Applicant’s case in civil court.  The Applicant also lost custody of his two daughters due to the then ongoing civil investigation and proceedings.  Despite not being convicted in civil court, the command chose to proceed with a General Court-Martial (documentation for which was not found in the service record) and the Applicant’s counsel convinced him to plead guilty to a violation of Article 134.  As previously stated, the Applicant did not receive a punitive discharge as part of his sentence, but the command did choose to pursue an administrative discharge for the same misconduct.

The Applicant’s final evaluation indicates that an Administrative Separation Board (ASB) recommended that the Applicant be separated with a General (Under Honorable Conditions) characterization of service.  However, the Applicant’s DD-214 indicates that the Applicant waived his right to an ASB and the Applicant was discharged with a UOTHC discharge.  This discrepancy between the service record and the DD-214 could not be explained.

In this case, the NDRB found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  In making its determination, the Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct, to include his earning of a Letters of Commendation, two Sea Service Deployment Ribbons, the Global War on Terrorism Service and Expeditionary Medals, an Iraq Campaign Medal with Eagle, Globe, and Anchor, an Afghanistan Campaign Medal, two Good Conduct Medals, and two Army Commendation Medals.

Moreover, the NDRB considered four character references, including a compelling testimonial from the adoptive parents of his son with whom he has maintained an open adoption relationship and who attested to the Applicant’s kind, passionate, and engaging bond with his son.  All commended the Applicant for his strong honor and character.  The Applicant also enjoyed strong evaluations, up through his final reporting period covering the periods following his misconduct.  The NDRB also noted that the Applicant reenlisted over six months after the incident of misconduct and that he would have received an Honorable discharge had he chosen not to reenlist at that time.  Additionally, the Board took note that the Applicant had no other misconduct in his over twelve total years of active service.  Together with the fact that the civil authorities chose not to punish him and have not restricted his continued relationship with the son whom he was accused of endangering, the NDRB found these facts, circumstances, and attestations to be compelling evidence that the Applicant had been more than adequately punished for his past transgression and that his discharge was therefore inequitable.  Consequently, the Board found by a unanimous vote that a change in characterization of service was appropriate.  Relief 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  HONORABLE, the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF, and the reentry code shall  RE-3G.  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.  (See www.va.gov/discharge-upgrade-instructions).  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, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost – including inpatient or crisis residential care for up to 30 days and outpatient care for up to 90 days.  Veterans do not need to be enrolled in the VA system to use this benefit.  In order 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 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.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost; you can use this benefit regardless of your discharge status, or enrollment in VA health care.  In order to find the nearest VA office to receive assistance, go to https://www.va.gov/find-locations/?facilityType=health.