ex- AOAR, 

Current Discharge and Applicant’s Request

Application Received: 20220922
Characterization of Service Received:   
Narrative Reason for Discharge:   CONDITION, NOT A DISABILITY
Authority for Discharge:   MARCORSEPMAN 6203.2 [CONDITION NOT A DISABILITY] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	 

Period of Service Under Review:
Date of Enlistment:  20060830	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080514	Highest Rank/Rate:  AOAA
Length of Service:  01  Year(s)  08  Month(s)  15  Day(s)
Education Level:  12	AFQT:  57
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 1.50 (1)  Behavior/Conduct: NFIR OTA: 2.20 
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:   Retention Warning Counseling:  NONE

NJP:  1

- 20070712:	Article 86 (Absence without leave, etc.) 
	Article 92 (Failure to obey order, regulation)
	Awarded:    Suspended:  NONE

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 16 effective 24 July 2006 until 27 July 2008, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

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 that her discharge is inequitable due to the fact she was a victim of a military sexual trauma (MST), mental health and post-traumatic stress disorder (PTSD) on active duty and the associated trauma mitigates the misconduct she committed that led to her discharge.

Discussion

Date:  20230501		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 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.  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)

:  The Applicant contends that her discharge is inequitable due to the fact she was a victim of a military sexual trauma (MST), mental health and post-traumatic stress disorder (PTSD) on active duty and the associated trauma mitigates the misconduct she committed that led to her discharge.

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 & Major Depressive Disorder (USN) and PTSD & MST (VA)	
2.	A.	Were these conditions present at time of misconduct?	Yes (Adjustment Disorder & Major Depressive Disorder).  Uncertain with respect to MST & PTSD later diagnosed by the VA.	
	B.	Were these conditions mitigating for the misconduct?	Yes, at least for Adjustment Disorder & Major Depressive Disorder.	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Yes, though such requirements were less stringent during the era of the Applicant’s active service.	
4.	Medical Board Member comments:	ISSUES per ‘READ AHEAD:’ Applicant Request:  Characterization:  HONORABLE; Narrative Reason change to: SECRETARIAL AUTHORITY 

Note:  BOLDING added for emphasis

PRIOR TO ENLISTMENT:

12 Jul 1988—Date of Birth

Age 1 year—Parental divorce.

The Applicant reported having been the product of a supportive childhood in which she was, basically, raised by her father and his second wife after the untimely demise of her mother during elementary school. 

Additional evidence noted below indicated, “Member with strong family history of depression…”

Additionally, the following Past & Family history is taken from the Applicant’s  elsewhere noted VA C&P examination:

“The Veteran grew up in Bellville, TX with her father, grandmother and older brother. Her mother suffered from mental illness and substance use disorders to drugs and alcohol. After she was born her father was granted full physical and legal custody of her and her mother did not have visitation rights. She did not see her mother at all during her childhood. Her mother continued to have substance abuse problems and mental health issues and she was arrested and put in jail in 1992. The Veteran stated that her mother was hearing voices telling her to cut off her hand and burn the house down.  Her baby was burned during the fire. The Veteran stated that she went into full blown schizophrenia. She was using drugs and drinking a lot during that time and was diagnosed with schizophrenia in prison. The Veteran stated that her mother began having mental health and substance use problems after her oldest brother died. He was hit by a three wheeler when he was 8 years old and her mother was present during the accident. The Veteran was not born yet. She said that her mother ''checked out" mentally after that. The Veteran spent time with her maternal grandparents and aunt until she turned 8 year old and they moved away.

Her father remarried when she was 11 years old and they moved to the Houston area. She lived with her step-mother, father and brother. Her father and step-mother got divorced four years later. Her family then moved back to Bellville. The Veteran describes her childhood as ''decent". She was never exposed to domestic violence. She denied ever being physically or sexually abused as a child. She was exposed to MST in the spring of 2007. She attended public schools and graduated from Bellville High School in 2006. He received ''Bs" in school. She ran track and cross country and played tennis. She was a member of the drill/cheerleading/dance team and golf club. During her junior and senior years she worked as a waitress. She had friends in high school and in her neighborhood and was social. Her mother passed away in 2010 from suicide. She talked to her twice on the phone. She and her brother were close growing up and are still close. She has a good relationship with her father. Her father lives in Austin and so does her brother. Her grandmother passed away two years ago. She entered the Navy in Aug. 2006. Her older brother was in the Navy as well. She didn't have money for college and her father didn't think that she would be productive in college so he opened her eyes to the possibility of entering the military.  Both grandfathers were in the Army and they served in combat. Her great-grandparents served as well.”

 Education Level:  12 prior to enlistment. 

MEPS:  AFQT:   57

30 Aug 2006—ENLISTMENT: @ Age 18

30 Aug – 01 Nov 2006—GLAKES “BOOT CAMP.”

11 Mar 2007— Completed AVIATION ORDINANCE CLASS A SCHOOL PENSACOLA FL. Where she was awarded the position of Yeoman and attended Aviation Warden Class C School and began a single romantic dating relationship.

 30 Apr 2007—transferred from Class C School to command at  

19 May 2007—Date of alleged rape/MST, reportedly, at a party for which she had volunteered to be the “designated driver” and “has no memory of the event beyond arriving at the party with [2 male? companions].”  

03 Jul 2007—Naval Hospital Lemoore Note:
“1. ADJUSTMENT DISORDER WITH DEPRESSED MOOD -
Member with strong family history of depression. (+) Neurovegatative
symptoms, (-) SI/HI noted.”

10 Jul 2007 1656—Naval Hospital Lemoore Mental Health (psychiatry) Initial Evaluation:

“The SM reports having multiple social stressors including death of a close friend whom she describes as, “family” (the friend lived with her family for 2 years), financial problems involving automobile accident in which she did not have insurance and is being sued for 6,500 dollars (also has to buy a new car), the end of a 4 year relationship after her fiancé cheated on her and gave her herpes, and a work-related ankle injury that has kept her from running and dancing, which is the way she typically copes with problems. She reports that on the 4th of July she was told that one of her close friends in Texas had killed himself. She reported not feeling up to going to work, due to being depressed. She stated that she went to sick call and went home for the day. On the 5th she reported to work and stated that she was reprimanded for not being at duty the previous day. SM stated that she went to her room and took two Ambien in order to, “just sleep”. She stated that she was just frustrated and had no desire to deal with work or anything else.  She reported that she did not expect to wake up in the hospital.  The command reported that they had gone to her room due to her not showing up for duty. The BOQ manager and XO reportedly went into her room and saw a bottle of pills on the floor and found the SM non-responsive in her bed. She was taken to Hanford emergency via ambulance and then
transported to Kaweah Delta mental health. At the hospital, the command was told that she probably took at least 8 Ambien, and from speaking with her, the XO and her flight surgeon had the impression that this was a suicide attempt…

She reported that her parents divorced when she was 1. She reported having no contact with her biological mother. She was mostly raised by her father.  SM reports that she has a very good relationship with her step-mom and father.  SM stated that she contacts her father every day, and he is very supportive of her.
The SM reported she is the 2nd of 2 children. She reports a good relationship with her brother. She describes her childhood as happy and denied any significant disciplinary or legal problems until after joining the military…

SM reports that she has been in trouble with her command due to going SIQ and not being in her place of residence while SIQ. She has received several counseling chits for various minor infractions (tardiness, failing room inspections, etc) and is going to CAPT’s Mast for this on 7/11/07. She reported that she does not feel that she can trust her chain of command, but reports that she has good support from friends and family.

Future plans and orientation:
She reports that she would like to stay in the military so she could get her education and become a doctor.
 
SM has been in the navy for 11 months and has a 2 year active duty commitment. She states that she is motivated to finish it and is very worried about the idea of being administratively separated. She has been stationed with 151 for three months. Currently she is on light duty due to an ankle injury.

Axis I: Depressive d/o NOS (MDD single episode vs. Adjustment d/o with mixed anxiety and depressed mood), r/o alcohol abuse
Axis II: deferred
Axis III: ankle sprain
Axis IV: problems with primary support, economic problems, occupational problems, military
legal problems
Axis V: 51
(pp. 219-223/304)

10 Jul 2007—Naval Hospital Lemoore Mental Health Evaluation Psychiatrist Report (as reported in the 9 Feb 2017 VA C & P Examination Note):  “At the Naval Hospital Lemoore there was a mental health evaluation conducted by… …, M.D., psychiatrist on 7/10/2007. In the history of presenting illnesses section it states, The SM reports having multiple social stressors including ....the end of a 4 year relationship after her finance cheated on her and gave her herpes." This note…also states, "SM reports that she has been in trouble with her command due to going SIQ and not being in her place of residence [sic] while SIQ…has received several counseling chits for various minor infractions (tardiness, failing room inspections, etc.) and is going to CAPT's Mast for this…”

10 Jul 2007—NMCSD Psychiatrist AHLTA Entry Notes:

“The SM (service member) is an 18 y/o single female active duty Navy E2, currently stationed with VFA-151. She was escorted to MH by command after being discharged from Kaweah Delta mental health after a reported medication overdose of Ambien. The SM reported taking 2 Ambien with the intention of, “going to sleep” to get away from her problems.”

“Spoke with pt's XO, CDR …about this pt's administrative disposition. Because of the pt's repeated behavioral problems since she has gotten to the command and the inordinate amount of time that they have had to spend with her as well as their upcoming DET schedule, he stated that he strongly preferred to separate this pt as soon as possible. I told him that I would prefer to give her a trial of treatment first and wait a month. However, because of operational demands, he did not feel that this was possible. Therefore, I suggested that pt's flight surgeon, LT…, could recommend separation for convenience of the government on the basis of his having diagnosed her with an adjustment d/o…”

11 Jul 2007—(per 8 Feb 2017 note) document noting work restriction “while she was on SSRIs for depression…[and an allegedly] hostile environment.”

16 Oct 2007—“[pp.176-178/304] at NH Lemoore, CA, Le Mental Health by [A Psychiatrist]:
Chief complaint
The Chief Complaint is: F/u depression…
The patient reports that she started to feel better so quit taking the Zoloft. When she tried to start it back up it made her feel worse in that she was very sleepy and unmotivated to do anything. She quit taking Zoloft about a month ago and feels well. She states that she has been happy and doesn't feel depressed anymore. She feels that she was feeling depressed due to all the negative
things happening to her all at once. Now she is taking each day as it comes and trying to plan out a little better. She convincingly denies SI or HI. She presents to request to be put back on full duty since she likes her primary job and feels that she wants to go back to work and doesn't feel that she is able to handle life stressors better now. 
Overall Risk Assessment: currently low due to strong desire to stay in the military, no current SI, and monitored environment.
Subjective
MULTIAXIAL DX
AXIS I: Adjustment disorder, resolved
AXIS II: deferred
AXIS III: ankle pain, herpes
AXIS IV: problems with the social environment
AXIS V: GAF = 60.

28 Nov 2007—FLIGHT MEDICINE CLINIC:
“History of present illness
The Patient is a 19-year-old female.  She reported: Encounter Background Information: Member seen for follow-up from adjustment disorder with suicidal gesture in July. She was taken off of the flight line at that time. Mental Health evaluated her and found no Axis II diagnosis and after a period of three months felt she was fit to return to full duty. She was then monitored for an additional two months by flight surgeon and with mental health recommendation will return member to flight deck duty in line division. Member is looking forward to opportunity to work in line and has no current depressive, anxiety, or neurovegetative symptoms. Good future orientation and no h/o S.I./H.I. over
past six months. Member has been off of SSRI for four months…

Objective
MMSE: 30/30 Parable Interpretation: 3/3, adequate insight and abstract thought Appearance: Well groomed, professional dressed. Mood and affect congruent with stated emotions, Substance Abuse H/O: (+) ETOH, no reported problems with the DUI's or civil dist. Depression: (-) Anhedonia, (-) Early Morning wakening, (-) anorexia, mild with noted weight loss, (-) difficultly
concentrating, (-) psychomotor retardation, (-) SI/HI noted currently. Anxiety:  (-) sense of impending doom, (-) excessive rumination, (-) fear of public places, (-) panic attacks, (-) somatic sequlae of anxiety disorder Mania: (-) mood fluctuations, (-) spending sprees, (-) high risk behaviors, (-) family history of bipolar d/o Neurosis: (-) no command hallucination, (-) ideas of reference, (-) magical thinking, (-) history of increasing isolation…’
Released w/o Limitations” 

 25 Apr 2008—[pp. 103-105/304] NH Lemoore, CA Psychiatrist co-signature AHLTA note included:  
“Primary Dx:  ADJUSTMENT DISORDER WITH DEPRESSED MOOD

[Chief Complaint:] …Pt reported for follow up stating ‘I don't understand whats going on. Why did my squadron doctor call my outside doctor telling her I had a personality d/o?’ Pt asked many questions regarding upcoming separation and appeared frustrated throughout appointment. Pt denies any thoughts of harm to self but did state she is ready for discharge from the Navy...”

Psychological symptoms: Anxiety. No high irritability, no euphoria, and no emotional lability. Depression. No sleep disturbances, no decreased need for sleep, no loss of interest in activities, no anhedonia, no decreased functioning ability, and no increase in energy. Low self-esteem. Not feeling guilty. Being upset by problems at home or work and absence of motivation…
Released w/o Limitations
Follow up: as needed in the MENTAL HEALTH clinic”

14 May 2008—DISCHARGE:
ENLISTMENT Details:
 Applicant Received:  Highest Rank/Rate:  AOAA
Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative:  (per DD 214) CONDITION, NOT A DISABILITY	
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-120 [CONDITION NOT A DISABILITY] 
Sep Code:  JFV – CONDITION, NOT A DISABILITY 
RE Code:  RE-4	
Discharged From:  STRIKE FIGHTER COMMAND 151 NAS LEMOORE, CA
Highest Rate:  AOAA (E-2)

At the Naval Hospital Lemoore there was a mental health evaluation conducted by … M.D., psychiatrist on 7/10/2007. In the history of presenting illness section it states, The SM reports having multiple social stressors including ....the end of a 4 year relationship after her fiancé [sic] cheated on her and gave her herpes." In this note it also states, "SM reports that she has been in trouble with her command due to going SIQ and not being in her place of residence while SIQ. She has received several counseling chits for various minor infractions (tardiness, failing room inspections, etc.) and  going to CAPT's Mast for this on…”

POST SEPARATION:

04 Jun 2010—Ibid. “On 06/04/2010, the Veteran was seen by …, Ph.D. at the Austin VA Clinic. In his clinical note it states, ‘MST Screening (P): Patient denies experiencing MST in the past.’”

08 Feb 2017—VA PTSD Disability Benefits Questionnaire included:”  A “PTSD screening test (PTSD 4Q) was negative (score=O)…and a [No]”  response to a current diagnosis of PTSD, though acknowledges a related DSM-5 diagnosis of  “Other Specified Trauma and Stressor Related Disorder ICD code: F43.8…[and] claimant reports being diagnosed with HSV2…since 2007.”   

“PTSD screening test (PTSD 4Q) was negative (score=0)”

21 Apr 2020—VA “LOCAL TITLE: C&P MENTAL HEALTH 16257
STANDARD TITLE: MENTAL HEALTH C & P EXAMINATION CONSULT DATE OF NOTE: APR 21, 2020@13:00   ENTRY DATE: MAY 05, 2020@15:26:07... Review Post Traumatic Stress Disorder (PTSD)…
In response, “Does the Veteran now have or has he/she ever been diagnosed with PTSD?
[X] Yes [ ] No…
Current Diagnoses…PTSD & Major Depressive Disorder”

“The Veteran have [sic] …5/19/2007 during service. MST that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) off base rape 5/19/2007 during service. [Note:  the military PEB evidentiary standard of minimum certainty is “more likely than not…]”

“The veteran stated that she does not drink. She stated, ‘I learned my lesson about that.’  She stated that she was using alcohol to help her sleep and was involved in a MVA where she got a negligent driving ticket a few years ago.
She denied drug use.”

“8. Remarks, (including any testing results) if any [PsyD dated 05 May 2020]:

The veteran was found to meet full DSMV criteria for PTSD. The current diagnosis is a progression of the previously diagnosed Unspecified Trauma­ and Stressor-Related Disorder. The veteran's depression is believed to be at least as likely as not secondary to PTSD.”

COMMENT:  The Applicant appears to have been the product of a reportedly relatively stable, supportive family situation punctuated by unfortunate challenges including the psychiatric illness and suicide of her mother during her elementary school years, resulting in her father and another male living with the family taking over as parent and big brother.  High School, apparently, went quite well including competitive participation in dancing, for example; and she enlisted in the Navy shortly after graduation partly inspired by a family tradition (including older brother) and the still ambient post “911” call to service.  After an impressive initial adjustment, she awoke one day quickly concluding she had been the victim of “rape and sodomy” at a party during which she reportedly had NOT consciously consumed either alcohol or drugs resulting in a herpes infection.  However, another health record entry suggested a primary role to  “the end of a 4 year relationship after her fiancé cheated on her and gave her herpes…”  Nonetheless, the compelling PAH testimony by the Applicant and Representative is acknowledged along with the Applicant’s remarkable record of achievements following her Naval service, regardless of nominal inconsistencies noted above. Regardless, it remains, the Applicant suffered significant psychological distress during her active service most likely related to the reported break-up of her engagement (for which there is clear reference in the health records contemporary with her enlistment) but not excluding at least the possibility of MST (for which there is no report or corroborating either Active Service “diagnosis/treatment” record or, for that matter, corroborating witness statement submitted) such that a mitigating nexus would, minimally,  appear to exist between the Applicant’s Adjustment Disorder and the conduct resulting in her pre-mature separation and be considered as a matter of clemency, fairness and equity.      	

When a Service Member’s Command suspects a physical condition interferes with their effective performance of duty, they should be referred to the appropriate medical authority.  If examination by a medical officer confirms the Service Member is suffering from a physical condition apparently beyond the individual’s control and indicates that the condition is not a disability, a command should initiate separation proceedings.  In this case, the Applicant was recommended to be administratively separated for the convenience of the government, and it was determined they had a medical condition, not a disability.  

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included one nonjudicial punishments for violation of Article 86 and 92 of the UCMJ.  However, the Applicant contends the trauma she suffered after being sexually assaulted when she attended a party off base as a designated driver in Fresno, California, and woke up naked after she lost consciousness.  She realized she had been raped and sodomized and believes she was secretly drugged by someone at the party, and she believes this was a mitigating factor in her misconduct.  Here, the Applicant’s official military service record documenting mental health challenges, coupled with additional post-service documentation provided by the Applicant, support the Applicant’s contention that her trauma was a mitigating factor associated with the in-service misconduct.  Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented PTSD diagnosis and the challenges the Applicant faced early within her service that obstructed her ability to establish herself professionally and excel warranted additional consideration in the determination of 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.  

In this case, the Board found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  The Board considered the Applicant’s overall capacity to serve; her entire military performance and conduct; her mental health diagnosis; the nexus between her mental/emotional stability; and the severity of her conduct in relation to her discharge characterization.  Consequently, the Board found a change in characterization of service was appropriate, and determined that the Applicant’s service generally met the standard of acceptable conduct and performance and that her digressions from good order and discipline can be attributed to the traumatic emotional toll of being a victim of sexual assault.  By a vote of 3-0, the Board found that the awarded characterization of service was inequitable and that relief in the form of an upgrade in the characterization of service to Honorable is warranted, and a commensurate change 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-3P.  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, see Find your nearest VA medical center.