ex-ADAN, 

Current Discharge and Applicant’s Request

Application Received: 20151007
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: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	(DEP) 20090316 - 20100112               	Active:	 

Period of Service Under Review:
Date of Enlistment:  20100113	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20130727	Highest Rank/Rate:  ADAN
Length of Service:  03  Year(s)  06  Month(s)  15  Day(s)
Education Level:  12	AFQT:  NFIR
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 2.3 (3)   Behavior/Conduct: 1.7 (3)   OTA: 2.28 

Awards and Decorations (per DD 214):	NDSM NAVY "E" GWOTEM GWOTSM SSDR(2) EAWS

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

SCM:    SPCM:    CIVIL ARREST:   CC:    

NJP:  2
- 20110127:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation)
	Awarded:    Suspended:   

- 20130711:	Article 92 (Failure to obey order, regulation) 
	Article 128 (Assaults)
	[Extracted from Evaluation Report and Counseling Record dated 23 July 2013.]
	Awarded: NFIR  Suspended:  NFIR

Retention Warning Counseling:  1

- 20101207:	For not demonstrating an ability to conform to the military structure evidenced by lack of reasonable effort to perform, inability to adapt to basic military structure, and multiple minor disciplinary infractions.  

NDRB Documentary Review Conducted (date):	20160303
NDRB Documentary Review Docket Number:	ND16-00035
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 40, effective 21 July 2012 until 10 November 2021, 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 seeks an upgrade in order to qualify for VA benefits.
2.	The Applicant contends that the narrative reason for his discharge should be changed to reflect a medical disability.
3.	The Applicant contends his discharge was unfair because he had a difficult time adjusting to military life by reason of contracting Schizoaffective Disorder while in service.
4.	[BOARD ISSUE]  For a change to the Narrative Reason for Discharge.
Discussion

Date:  20230208		Location:  WASHINGTON D.C.	Representation:  

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

Pursuant to the Settlement Agreement in Manker v. Del Toro, the Naval Discharge Review Board (NDRB) automatically reconsidered the Applicant’s previous NDRB Decision because it was issued between March 2, 2012, and February 15, 2022 for Iraq and Afghanistan era Navy and Marine Corps Veterans who received General or Under Other-than-Honorable (UOTH) discharges while having a diagnosis(es) (or symptoms) of post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), military sexual trauma (MST), or other behavioral/mental health conditions.  The NDRB automatically reconsidered the Applicant’s case to ensure appropriate application of Department of Defense and Department of the Navy guidance regarding the effect of PTSD, TBI, MST and behavioral/mental health conditions upon service members, and how such effects may have affected conduct ultimately leading to an individual’s discharge. 

As a result of the Applicant’s claim of a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  
Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave, etc.) 
Article 92 (Failure to obey order, regulation)
Article 128 (Assaults)

:  The Applicant seeks an upgrade in order to qualify for VA benefits.

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 and the equity of a discharge.  As such, this issue does not serve as a basis upon which the NDRB can grant relief.  The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a benefit determination review.

:  The Applicant contends that the narrative reason for his discharge should be changed to reflect a medical disability.

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.  However, upon a review of the available records, the Applicant should consider petitioning BCNR for a determination of whether the medical condition(s) or underlying diagnose(s) interfered significantly with the applicant’s ability to carry out the duties of their office, grade, rank or rating.  The Applicant (using DD Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

:  The Applicant contends his discharge was unfair because he had a difficult time adjusting to military life by reason of contracting Schizoaffective Disorder while in service.

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 a DSM mental/behavioral health condition, PTSD, TBI, or Sexual Trauma/Abuse/IPV existed at the time of the Applicant’s military service?	Yes, Adjustment Disorder (military); Schizophrenic Spectrum Disorder, Bipolar Disorder, OCD, etc. (VA)	
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?	Unknown	
4.	Medical Board Member comments:	(BOLDING added for emphasis)

PRIOR TO ENLISTMENT:
13 February 1989:  DOB.
22 Jan 2007—2006-2007 MILPATAS HIGH SCHOOL HONOR ROLL CERTIFICATE AWARD presented.
2009—INDEPENDENCE HIGH SCHOOL:  GRADUATION.
*13 Jan 2010—ENLISTMENT DATE: @ Age 20 yo
On a 4-YEAR ACDU/4YR USNR CONTRACT.

#RATING TRAINING:
02 Apr 2010—AT Level 1 Awareness Training…” Certificate.
06 May 2010—Certificate of Completion: “Aviation Machinist’s Mate Course, Class A1 Turbojet Fundamentals Strand (C-601-2014.Jl)”

#POST TRAINING DUTY:
16 Jul 2010—Beginning of 1st Observed FITREP period:
07 Dec 2010—Retention Warning:  For not demonstrating an ability to conform to the military structure evidenced by lack of reasonable effort to perform, inability to adapt to basic military structure, and multiple minor disciplinary infractions.
15 Jul 2011—End of 1st FITREP Report Year: “Individual Trait Average:  1.33…Significant Problems.”
“Airman Gao’s actions have been incompatible with the standard of conduct and behavior…”
27JAN11: 1st NJP UCMJ Articles 86, 92.
“…Member has the potential to rectify this behavior and become a retainable Sailor.”
16 July 2011-15 Jul 2012 FITREP:  ITR 3.00 in a 3.28 average group; “Progressing.”
“Accurate and methodical in all that he does.  With the proper supervisor, he produces quality work.”
16 Jul 2012-15 Jul 2013—FITREP: 
ITR=2.50; Significant Problems; 
11 Jul 2013--NJP: Violation of UCMJ Article 92 & 128… ADAN Gao showed motivation and a desire to learn when supervised.  Fulfilled multiple temporary assignment duties for the command…determination and resolve to complete his Enlisted Aviation Warfare qualification…Unfortunately…has had a difficult time adapting to the military and naval service.  with proper focus and mentorship, he will be capable of contributing to a future employer.”
*27 July 2013—DISCHARGE DATE: GENERAL (UNDER HONORABLE CONDITIONS); JKA; RE-4 for PATTERN OF MISCONDUCT
3 year 6 month 15 day enlistment; Highest rank:  ADAN
Evaluation Marks (# of occasions):  Performance/Proficiency: 2.3 (3)   Behavior/Conduct: 1.7 (3)   OTA: 2.28 

POST SEPARATION:
28 July 2013—EFFECTIVE DATE OF VA 100% disability rating.
05 Jan 2014[?]—INDEPENDENCE HIGH SCHOOL testimonial:
“I was Zhen's high school administrator from 2007 until his graduation in 2009. In May of 2009 he was invited to Honor Night and received an award for making the Principal 's Honor Roll based on his grades. He earned a Cal-Grant based on his 3.5 GPA. [Applicant] passed both the Math and English/Language-Arts California High School Exit Exams in 2008. Despite being an English-learner, [Applicant] always approached his work with enthusiasm while in high school. I had never been called upon to assist [Applicant]  socially or academically when he was a student. Though he sometimes had a very slight stutter, it was infrequent, and did not interrupt conversations. He often stopped by my office to say hello. Overall, [Applicant] had been very socially confident young man, and a very
capable and well-adjusted student.
On January 31, 2014 [SIC???] [Applicant] returned to visit, and it was obvious that something had dramatically changed. Though happy to see me, he was also clearly agitated. His speech was punctuated by a regular and strong stutter, which often prevented from completing sentences. His facial response to this made it obvious that it was a great source of frustration for him. He continually apologized for the constant interruptions in communication that the stutter caused. The content of his conversation was also difficult to follow, as he seemed to quickly lose concentration, and often repeated himself. He explained that something had happened to him while he was serving in the military. This stopped him from completing his military .contract, and the lack of concentration had even led to several automobile accidents. He said that he was completely unable to concentrate while doing schoolwork. This is a very different young man than the one that graduated from Independence High School in 2009.”
26 Feb 2014—Head Counselor letter:
“…[Applicant] was our student from 2007 through 2009…a generally good student…Like many of our students, he was learning English as he made his way through school. He met this challenge well, and was well-liked by his teachers and peers….
I was distraught to learn that [Applicant] had developed a very bad stutter, and was found to have psychological problems after his involvement in the service. This was never the case when he was here, and can only be a recent development in his life.”
01 Mar 2014—PT STATEMENT TO VA:
"I would like to inform the VA that as a result of my mental health condition I feel I have not been able to function properly as a productive person in society. I have attempted to attend college where I failed some classes and even dropped out due to my
inability to stay focused. My relationship with my parents is very volatile. We argue almost daily and I raise my voice at my them
and even curse at my father. I've attempted to find work off and on ever since I got out of the military, but could not hold down any
employment. I lose focus and am distracted very easily and find my self in a daze often with delusional thoughts for hours on end quite often.  I've lost track of my wallet, credit cards and identification and other valuables numerous times and have had to replace them with the OMV and other agencies several times within short spans of time in between each incident. I've had 2 motor vehicle accidents; one on 10/28/2013 and a second one which went unreported because the only damage was to my vehicle. Both times because I wasn't paying attention and was
distracted by my own thoughts. I often feel anger, depression, sense of hopelessness…”
26 Mar 2014—Science Teacher letter:
“[Applicant] was a formal student in my high school biology class. He was a high-achieving student who worked hard in class. I met [Applicant] again a few weeks ago, after the completion of his military tour of duty. He appeared to be very agitated, and he had acquired a speech impediment in the form of a pronounced stutter. It was difficult for him to communicate, often pausing, unable to
speak in a continuous flow.”
02 Sep 2014—DEPARTMENT OF VETERANS AFFAIRS
Palo Alto Health Care System Palo Alto, CA Treating Psychiatrist letter:  “I am his treating psychiatrist [____, M.D.] and have been caring for [Applicant] since September 2013. I have seen, observed, and evaluated [Applicant] on many occasions over the past year.
I have diagnosed [Applicant] with schizophrenia, and he is currently being treated with antipsychotic medications for his symptoms. His symptoms include delusions, somatic hallucinations, auditory hallucinations. paranoia, disorganized behavior and disorganized speech.  According to his history, [Applicant] started experiencing significant functional and occupational decline since his time in the military from 2010 to 2013. This history is consistent with the
progression of the disorder of schizophrenia. In the military, however, he was never diagnosed or treated for such a disorder, and thus the behaviors and thoughts he manifested ultimately had
likely contributed to his poor performance in the military and his eventual discharge due to pattern of misconduct.”
02 Sep 2014—VA LETTER:
“According to his history, [Applicant] started experiencing significant functional and· occupational decline since his time in the military from 2010 to 2013. This history is consistent with the
progression of the disorder of schizophrenia. In the military, however, he was never diagnosed or treated for such a disorder, and thus the behaviors and though~ manifested ultimately had
likely contributed to his poor performance in the military andf his eventual discharge due to pattern of misconduct.”
02 Dec 2014—D College counselor letter:  “He has shown me high school records that show that he was an outstanding student. Since being at D College, his disability has interfered with his ability to succeed in school. He is unable to take even one class at a time. [Applicant] issues at school include short-term memory problems, concentration issues, competing thoughts, anxiety and depression.  He has many withdrawals and no passes. I do not feel that he can presently Participate in school or training. ”
01 Jan 2015—VA FORM 21-0781, JAN 2014 included:
“[Applicant] was extensively hazed and sexually harassed and assaulted during his period of service. Particularly in 2011. In the locker showers, peer would slap [Applicant] naked bottom, mock his "small penis", and also aggressively grabbed [Applicant] genitals, inflicting pain-this happened several times. There were also 2 incidents where [Applicant] arms were grabbed from behind, and another solider attempted to put his penis in [Applicant] mouth while calling him a homosexual slur. In particular, a fellow peer named X often initiated this harassment and assaultive behaviors. At one time X grabbed [Applicant] head and attempted to shove [Applicant] face into his naked bottom. [Applicant] was constantly called, "faggot" and mocked for his Chinese accent, asking him "what Chinese idiot doesn't know kung fu." This culminated into peer X punching [Applicant] in the jaw on 2/13/11. [Applicant] was also assaulted and punched while in his bunk sleeping on nearly a daily basis, including an incident where two other peers held down his blanket while he was assaulted by others in his bed.”
23 Mar-15 Jul  2015—“DISCHARGE INSTRUCTIONS”:
Hospitalization was due to “having paranoid thoughts…also sad and feeling depressed.  PTSD, anxiety, and OCD…leaving with our fluoxetine (the liquid) and olanzapine…You will be visited at your Board and Care…
Diagnosis:
1) PTSD
2) OCD
3) Hoarding
4) Anxiety”
26 Aug 2015—VA Letter:  100% Assigned Disability Rating; Effective: Jul 28, 2013 for SCHIZOAFFECTIVE DISORDER and OBSESSIVE COMPULSIVE DISORDER (claimed as multiple mental disorders)
MANIFESTATIONS:
• Grossly inappropriate behavior
• Persistent danger of hurting others
• Gross impairment in communication
• Disorientation to place
• Persistent hallucinations
• Persistent delusions
• Gross impairment in thought processes
• Persistent danger of hurting self
• Total occupational and social impairment
• Disorientation to time
• Speech intermittently obscure

We determined that the following conditions were not related to your military service, so service connection couldn't be granted:
Hearing loss
Varicocele
Head injury
Schizophrenia
Post-traumatic stress disorder
Attention deficit disorder/ ADHD
Personality disorder
Adjustment disorder

11 Sep 2015—DD FORM 293:  “My discharge rating was not fair because I. had a difficult time adjusting to military life. I had contracted Schizoaffective Disorder while in service for Which I am Currently disability rated by the Veterans Administration at 100%. I believe that I should have received a medical discharge with a character of services as Honorable.”
27 Apr 2016—NDRB DISCHARGE REVIEW Letter:  NO CHANGE in a 5/1 NO CHANGE/Change to HONORABLE SPLIT VOTE (ND16-00035).
“The post-service documentation provided by the Applicant, supports the Applicant’s contention that his mental health conditions were a contributing factor associated with the in-service misconduct.  However, consideration was already granted by his command as evident by the Under honorable Conditions (General) characterization of service.”

COMMENT:   
The Applicant is a, now 34 yo ex-ADAN/USNR(?) who, appears to have done quite well in High School despite the extra linguistic burden of having been the product of an immigrant Asian family situation making him an ESOL student, graduating with honors with handicaps limited to a mild stutter in May 2009 and enlisting in the Navy in 2009 at age 20 on an 8-year contract (4-ACDU + 4 USNR) graduating A-school only to encounter adjustment difficulties at his first duty station resulting in an NJP (despite showing evidence of motivation) for what, simply, amounted to an excessive requirement for work performance supervision, later tinged by technical UCMJ offenses, eventually, resulting in his G(UHC) discharge with no record of having sought counselling or medical assistance.  Throughout his enlistment, there had, apparently, been no indication of wanton regulation disregard, or drug abuse but errors in conduct.  Upon discharge, he returned to his community where High School officials (and his parents) noticed a marked decline in communication skills and academic ability along with a considerable increase in stuttering resulting in mental health hospitalizations  and diagnosis of multiple serious psychiatric disorders in the SCHIZOPHRENIA-AFFECTIVE DISORDER SPECTRA complicated by the Applicant’s disclosure of having been the apparently initial and sustained victim of egregiously outrageous mental and physical abuse when assigned to post training duty stations of which the Applicant then formally complained in a compelling narrative.  The FITREP content noted above suggests at least the early development of the learning and communication difficulties later observed by authorities following discharge.  Unfortunately, neither the Applicant nor the command requested any medical or mental health related consultation during his active service.  The relatively rapid evolution of deterioration suggests a nexus between what appeared to represent misconduct and the later diagnosed mental health conditions.  The rather compelling, extensively detailed complaint by the Applicant of having been the brunt of psychological, physical and sexual abuse suggests issues of propriety and equity better referred to the BCNR pending further discussion.
     	
In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included the violations of Articles 86, 92, and 128 of the UCMJ.  These violations were a failure to meet the requirements of his contract honorably. Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  This usually results 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. However, here, the command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. However, the Applicant contends his mental health condition was a mitigating factor in his misconduct. The Applicant’s official military service records, coupled with additional post-service documentation provided by the Applicant, support the Applicant’s contention his mental health was a mitigating factor associated with his in-service misconduct. Moreover, the NDRB determined the unique circumstances of this individual case, coupled with the aforementioned opinion of the Board’s Medical Officer, warranted additional consideration in the determination of his overall characterization of 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. 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 discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.
In this case, weighing (using the scales of liberal consideration) the Applicant’s overall performance and conduct against the standards for characterization of service, the Board held that the Applicant’s mental health issues exonerated the willfulness/failure to comply with military discipline and thus a change in the characterization of service to Honorable was appropriate.  
In making its determination, the Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct; his mental health diagnosis of Schizoaffective Disorder; the nexus between his misconduct and his mental/emotional stability; and the severity of his conduct in relation to his discharge characterization. The Applicant served 3 years, 6 months, and 15 days of his four year contract.  He was awarded National Defense Service Medal, Navy “E” Ribbon, Global War on Terrorism Service and Expeditionary Medal, two Sea Service Deployment Ribbons and earned his Enlisted Aviation Warfare Specialist breast insignia.  While the Board also considered his misconduct a significant negative aspect within his military career, it did not rise to constitute a significant departure of military conduct in the context of his entire time in-service.  Of note, the Board considered this case in accordance with the Kurta Memorandum and found sufficient evidence to grant full relief. Thus, by unanimous decision, the Board found relief in the form of an upgrade in the characterization of service to Honorable is warranted. The narrative reason for separation shall change to Secretarial Authority. Relief granted.
Issue 4:  Board issue for a change to the Narrative Reason for Discharge.
The Board found a change to the Narrative Reason for Separation to Secretarial Authority was authorized and warranted. The NDRB has broad authority to review Department of the Navy discharges. In accordance with SECNAVMAN 5420.1, ¶ 214 (Review on Motion of the NDRB) the NDRB may initiate a Discharge Review even without an Applicant’s request up until the discharge date exceeds 15 years. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis, and if such a review reveals an impropriety or inequity, relief is in order. Further, the NDRB does not require an applicant to make an express or implied contention; specifically, under ¶ 211 (Applications) an “applicant is encouraged, but not required, to identify an issue or issues as pertaining to the propriety or the equity of the discharge.” Thus, under ¶ 212 (Procedural Rights of the Applicant) the NDRB will consider that a request for review from an applicant who does not have an Honorable Discharge will be treated as a request for a change to an Honorable Discharge. Similarly, an applicant may request a specific change in the narrative reason for separation. If an applicant does not request a specific change in the reason for discharge, the Board will presume that the request for review does not involve a request for change in the reason for discharge. However, this presumption does not waive “the NDRB’s responsibility to examine the propriety and equity of an applicant’s discharge, the NDRB will change the reason for discharge if such a change is warranted.” Although highlighting the NDRB’s authority to review and change the narrative reason for discharge, the Board noted that “an applicant may not receive a less favorable discharge than that issued at the time of separation.” ¶ 207 (Objective of Review).
Consequently, the Board held that it is authorized to make a change to the narrative reason for discharge; reasserted (without necessarily repeating in this section) all the reasons stated above for warranting a change to the characterization of service, and summarized the following considerations concerning the change to the narrative reason for discharge. Specifically, the Board held that the narrative reason for separation should be Secretarial Authority. Again reasserting all the reasons stated above that supported the Board’s decision to warrant a change to the characterization of service, and in accordance with the principles of liberal consideration, the Board held that mitigation should also be given to the narrative reason for discharge. In other words, the Board found that because the Applicant’s Mental Health excused/mitigated the maliciousness/willful nature of the misconduct enough to warrant an upgrade to the characterization of service then it also rationally applied to the narrative reason for which the Applicant was discharged. In essence, the Board found that the underlying narrative reason for the Applicant’s discharge is not misconduct, but the Applicant’s inability for continued naval service. Therefore, stating in the simplest of terms, the Board held the Applicant’s overall service should be deemed Honorable with a narrative reason for discharge of 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-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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