ex- DCFA, 

Current Discharge and Applicant’s Request

Application Received: 20220110
Characterization of Service Received:   
Narrative Reason for Discharge:   PATTERN OF MISCONDUCT
Authority for Discharge:   MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT] 

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:	 

Period of Service Under Review:
Date of Enlistment:  20050901	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080812	Highest Rank/Rate: DCFN
Length of Service:  02  Year(s)  11  Month(s)  12  Day(s)
Education Level:  12	AFQT:  68
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.0 (3)   Behavior/Conduct: 2.0 (3)   OTA: 2.83 
Fitness Reports: 

Awards and Decorations (per DD 214):	NDSM GWOTSM 

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

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  2

- 20060721:	Article 92 (Failure to obey order, regulation) 
	Awarded:    Suspended:  

- 20080708:	Article 92 (Failure to obey order, regulation) 
	Article 109 (Property other than military property of U.S.: waste, spoilage, or destruction)
	Awarded: RIR RESTR EPD FOP   Suspended:  

Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20120126
NDRB Documentary Review Docket Number:	ND10-02145
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.  Naval Military Personnel Manual, (NAVPERS 15560D), Change 23, effective 20 May 2008 until 9 November 2009, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

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

Applicant’s Issues

1.	The Applicant contends his post-service is deserving of consideration for an upgrade.
2.	The Applicant states that his discharge is unduly harsh as his command did not account for mental health issues that impacted his behavior during his tenure on active duty.

Discussion

Date:  20230406		Location:  WASHINGTON D.C.	Representation:  

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

As a result of the Applicant’s claim of a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  
Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  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 92 (Failure to obey order, regulation) 
Article 109 (Property other than military property of U.S.: waste, spoilage, or destruction)

:   The Applicant contends his post-service is deserving of consideration for an upgrade.

The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of community service, testimony to financial stability and continuous employment, and character references.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  While the Board did not grant relief on this issue alone, it considered all inputs provided by the Applicant and how his accomplishments and achievements afford more perspective on his character. 

Issue 2:  The Applicant states that his discharge is unduly harsh as his command did not account for mental health issues that impacted his behavior during his tenure on active duty.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

Because the Applicant claimed mental health was a factor in their discharge, the Board reviewed the Applicant’s case in accordance with 10 U.S.C. § 1553, and pursuant to the Kurta Memo and other applicable regulations and guidance, including the Wilkie Memo.  Under the Kurta Memo, “[m]ental health conditions, including PTSD; sexual assault; and sexual harassment inherently affect one’s behaviors and choices causing veterans to think and behave differently than might otherwise be expected.”  Although, “[l]iberal consideration does not mandate an upgrade, [r]elief may be appropriate … for minor misconduct commonly associated with mental health conditions … and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.”  Additionally, “substance seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration.”  However, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”  Therefore, “Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.” See USD (P&R) Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” 25 August 2017 (“Kurta Memo”).

The review of discharges pursuant to the Kurta Memo and its other applicable regulations/guidance generally involves four questions: a) Did the veteran have a condition or experience that may excuse or mitigate the discharge; b) Did that condition exist/experience occur during military service; c) Does that condition or experience actually excuse or mitigate the discharge; and d) Does that condition or experience outweigh the discharge?  

In this case, the Board found that: a) the Applicant did have a condition/experience that mitigated the discharge; b) the condition existed during military service; c) the condition/experience mitigated the underlying basis/misconduct for the discharge; and d) the condition/experience outweighed the Applicant’s assigned Discharge Characterization.  

MEDICAL BOARD MEMBER OPINION 

1.	Does the available record reasonably support a  boarded mental health condition existed at the time of applicant’s military service?	Yes – Adjustment Disorder and Depression exacerbated by undiagnosed Sleep Apnea	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	Yes	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	No. Applicant sought medical support and intervention, but was advised that his symptoms did not meet the threshold for further evaluation or treatment. His efforts to get care and response received is documented in medical record. 	
4.	Medical board member comments:	Post-service diagnosis align with the symptoms he was experiencing during his active duty service. Issues raised by the Applicant during active duty were inadequately addressed at the time and not accounted for at all in the decision to administratively process him. Had the symptoms been treated appropriately the Applicant’s post-service employment achievements and record likely would have been achieved during his time in the service. There is a medical nexus to the Applicant’s medical condition and behavior and mitigation can be applied. 	

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 determined that medical issues mitigated the misconduct that the Applicant was disciplined for and that these issues were not accounted for at the time of discharge. In addition, the review of the record led the Board to assess that the command did not afford the Applicant with the support to address his adjustment issues nor did they provide him with an opportunity to rehabilitate with the shortfalls they used to substantiate his administrative processing. 

In this case, the Applicant contends that his discharge is unduly harsh and inequitable as his behavior while serving on active duty is mitigated by medical issues, which include mental health challenges, not properly diagnosed or treated at the time of his administrative separation.  Administratively separated for a Pattern of Misconduct after receiving disciplinary action for violations of Articles 92 and 109, the Applicant contends that his command did not account for mitigating factors that are substantiated by medical diagnosis for sleep apnea and depression.  During his time in service the Applicant stated that he began abusing alcohol as a means of treatment when over the counter medications failed to provide relief.  Upon approaching medical he was informed that his symptoms were not serious enough for further treatment and he was left to address his health issues on his own.  This caused him to be challenged with adjusting to his environment and further contributed to his depression.  A review of the Applicant’s military medical records reflect his efforts to get medical assistance for symptoms that would be diagnosed as sleep apnea and depression post-service, but during his active duty tenure were not treated or referred for additional evaluation and treatment.  It was also noted by the Board that his post-service accomplishments coincide with treatment for his medical issues and that his employment success is marked by promotions and the assignment of increasing responsibilities. 

The Board also noted the lack of a retention warning counselling prior to the Applicant’s administrative separation. Prior to separation performance evaluations cite acceptable performance and progression and the Applicant’s leadership failed to provide documented guidance on their intention to separate the Applicant if he failed to rehabilitate himself at any time during his enlistment.  His administrative separation is also aligned with his second NJP which further highlighted the limited patience and attention the Applicant’s leadership afforded him.  The cited disciplinary proceedings, which are substantiated by disciplinary lapses, meet the standard to process for a Pattern of Misconduct, but did not meet a burden for the Board to accept that the Applicant was incapable of conforming to standards and did not possess the potential to continue to effectively serve. In review of all records, and accounting for the testimony of the Applicant, the Board noted the Applicant’s efforts to seek medical support were not sufficiently accounted for; the Applicant was not issued any retention warning counselling; and the Board was challenged to apply regularity in that the Applicant truly understood the tenets of the due process he had a right to during the administrative separation process.   

Given the establishment of a medical nexus with the Applicant’s diagnosed conditions and the behavior displayed during his active service, the Board did find reason to apply mitigation to the misconduct used to substantiate his Pattern of Misconduct.  While on active duty the Applicant did attempt to get medical assistance for the issues he provided post-service diagnoses for, but his command failed to provide him with the appropriate treatment and attention.  The immediate action to separate the Applicant after his second NJP was inequitable as the Applicant’s performance evaluations do not depict a Sailor who could not be rehabilitated.  In review of all circumstances, the Board found the assigned UOTHC discharge characterization to be unduly harsh and his processing to be inequitable as it was not holistic in evaluation of all associated circumstances impacting the Applicant.  In a unanimous vote, the Board determined the assigned discharge characterization to be inequitable and that the Applicant’s misconduct is mitigated by medical issues not considered at the time of discharge.  An upgrade to Honorable was determined to be appropriate.  Further, noting conditions and circumstances that were not accounted for by the Applicant’s command and the Separation Authority at the time of discharge, the Board also unanimously voted to change the narrative reason for separation to Secretarial Authority.  

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-1.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

ADDENDUM:  Information for the Applicant

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

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

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

Service [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

Employment/Educational Opportunities: The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: The NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE-CODE” is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct: DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades: There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & (d)(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

Post-Service Conduct: The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate that in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to: Secretary of the Navy Council of Review Boards, Attn: Naval Discharge Review Board, 720 Kennon Street SE Rm 309, Washington Navy Yard DC  20374-5023.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text 274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.