ex-PFC, 

Current Discharge and Applicant’s Request

Application Received: 20221004
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT] 

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

Summary of Service

Prior Creditable Service:
Inactive:	 	          	Active:	 20090323 - 20121120 

Period of Service Under Review:
Date of Enlistment:  20121121	Age at Enlistment:  24
Period of Enlistment:   Years   Extension
Date of Discharge:  20141003	Highest Rank/Rate:  Cpl
Length of Service:  1  Year(s)  10  Month(s)  12  Day(s)
Education Level:  12	AFQT:  67
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.2 (NFIR)   Behavior/Conduct: 4.1 (NFIR)  

Awards and Decorations (per DD 214):	Rifle  GCM GWOTSM NDSM 

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

SCM:    SPCM:    CIVIL ARREST:    CC:   

NJP:  2

- 20140606:	Article 128 (Assaults) 
	Awarded:  RIR FOP RESTR EPD  Suspended:  RESTR

- 20140723:	Article 134 (General article) 
	Awarded:  RIR FOP RESTR EPD  Suspended:  NONE

Retention Warning Counseling:  4

- 20140606: 	For violation of article 92, Failure to obey order or regulation.  For on 20140525, you violated your MPO that was issue by the Battalion Commander and contacted your husband through a text message. 

- 20140716: 	For violation of article 92, Failure to obey order or regulation.  For on 20140704 you violated your MPO that was issued by the Battalion Commander by communicating with your husband through a third party. 

- 20140724: 	For violation of article 134, Adultery.  Specifically, from October to December 2013, you wrongfully had sex with a male Marine not your husband. 

- 20140925:	For notification from Commanding Officer of not being recommended for reenlistment due to a pattern of misconduct and assignment of a separation code of RE-4.
NDRB Documentary Review Conducted (date):	20160108
NDRB Documentary Review Docket Number:	MD15-01338
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM
20090323 UNTIL 20121120”
  “MISCONDUCT”

The NDRB will recommend to Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	

Additional Statements

	From Applicant:		From/To Representation:		From/To Congress member:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 26 November 2013 until present. 

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 to qualify for U.S. Department of Veterans Affairs (VA) education benefits.
2.	The Applicant contends that her relationship with her now ex-husband affected her ability to serve and mitigated the reason for her discharge
3.	The Applicant contends her post-traumatic stress disorder (PTSD), military sexual trauma (MST), and mental health was a mitigating factor in her misconduct.
4.	The Applicant contends that her command’s lack of care excuses or mitigates her discharge.
5.	The Applicant contends her post-service conduct warrants a discharge characterization upgrade.

Discussion

Date:  20230412		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 NDRB 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 NDRB 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 or traumatic brain injury (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 MST 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 128 (Assaults) 
Article 134 (General article)

:  The Applicant seeks an upgrade to qualify for VA education 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 basis upon which the NDRB can grant relief.

However, upon administrative review the NDRB found the Applicant had a period of “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20090323 UNTIL 20121120” that was not annotated on the Applicant’s original DD 214.  Consequently, presentation to the VA of this period of “Continuous Honorable Service,” is likely to avail the Applicant of most or all VA benefits.  Although the NDRB will recommend to Commandant of the Marine Corps that the DD 214 be corrected as appropriate, it is the Applicant’s responsibility to ensure these administrative changes are incorporated into the record by the respective Service Headquarters.  Moreover, it is the Applicant’s sole responsibility to submit this period of “Continuous Honorable Service” to the VA for a determination of eligibility for VA Benefits.   

The Applicant is directed to the Addendum, specifically, the paragraph regarding the 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 www.va.gov/discharge-upgrade-instructions for additional assistance regarding a benefit determination review.  Additionally, VA-run Vet Centers also provide lifelong free mental health counseling regardless of discharge status.  To find your local Vet Center, go to www.va.gov/find-locations and search for “Vet Centers” under Facility type.

Issues 2-5:  The Applicant contends that her relationship with her now ex-husband affected her ability to serve and mitigated the reason for her discharge and that her post-traumatic stress disorder (PTSD), military sexual trauma (MST), and mental health was a mitigating factor in her misconduct; contends that her command’s lack of care excuses or mitigates her discharge; and further contends her post-service conduct warrants a discharge characterization upgrade.

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 NDRB 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 NDRB 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 partially mitigated the underlying basis/misconduct for the discharge; and d) the condition/experience did not outweigh 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 with mixed disturbances of emotion and conduct, Borderline Personality Disorder (anger issues, Self Injurious Behaviors (SIBS history “cutting” behavior)), possible PTSD-related issues related to risks posed by Childhood Sexual Trauma exposure; MST (Alleged and Reported by Applicant but Perpetrator found Not Guilty), but claim suggests other victims) (USMC);  PTSD and PTSD spectrum conditions (VA).	
2.	A.	Were these conditions present at time of misconduct?	Yes, Adjustment Disorder, Borderline Personality Disorder, Childhood Sexual Trauma related influence, (USMC); and PTSD (VA/PTSD-spectrum conditions).	
	B.	Were these conditions mitigating for the misconduct?
	Yes, though not exculpatory.	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?
	Yes	
4.	Medical Board Member comments:	PRIOR TO ENLISTMENT:

“[Applicant] was born and raised in Courtland Manor New York by her mother and stepfather. Her biological father was not involved in her life, until she was 16 years of age. She was the oldest child of 4. She reports a very loving childhood and describes her stepfather active in the paternal role. She reports that family left NY and moved to Orlando, Fl at a young age and she had difficulty with the transition. She reports an instance of sexual abuse by a female neighbor. Veteran graduated from high school and at age 21 entered the military.”

“She reported that she had been sexually molested [on one occasion] at age 6 by a female babysitter, who was 14. It only happened one time. Patient did not know what was going on. Does not remember feelings… [was] daughter of family friends… ”

Also, apparently traits of Borderline Personality structure (or possibly Bipolar spectrum) disorder, e.g., “Patient endorses history of ‘anger problems’ and severe emotional lability since a young age and propensity to over-react to small or insignificant situations.  History of Self Injurious Behaviors (SIBs) in past (cutting) but it has been some time (years) since she last engaged in this…” (see below entry)

Education Level:  12+

2009: “Met her first husband, dated for several months before she proposed in Dec 2009 and married in Feb 2010.”

MEPS:  AFQT:  67

23 Mar 2009—ENLISTMENT: @ Age 24
For Period of Enlistment:  4 Years  5 MONTHS Extension

Feb 2010—Marriage (to above fiancé).

07 Sep 2012 (pp938/1048)—AHLTA Mental Health Note: Included reference to past Self Injury Behavior (SIB), etc.—“Patient endorses extreme mood changes in which she loses control and has on occasion become physically assaultive toward others. Patient endorses frequent episodes of rage to which she is verbally aggressive toward others. I curse them out. Most recent episode two months ago following birth of her second child in which she was verbally aggressive with a medical provider from OB/GYN clinic while speaking on the phone. She has been warned by her staff NCO that he could no longer protect her from incidents caused by her anger problems thus patient willingly seeking to get help. Patient endorses history of anger problems and severe emotional lability since a young age and propensity to over-react to small or insignificant situations.  History of SIBs in past (cutting) but it has been some time (years) since she last engaged in this…continues to complain of chronic feelings of emptiness, extremely poor frustration tolerance, swift and frequent mood changes and inability at times to recognize her behaviors during extreme anger episodes.”

“AXIS I:Adjustment disorder with mixed disturbances of
emotion and conduct (by history)
AXIS II:Borderline personality disorder (by history)
AXIS III:Pregnant
AXIS IV:Routine stressors of military service, marital
discord, young child at home
AXIS V: GAF-55 [Global Assessment of Functioning; a GAF rating of 51 to 60 signals the existence of moderate difficulty in social or occupational functioning].

26 Oct 2012
ADJUSTMENT DISORDER WITH ANXIETY AND DEPRESSED MOOD on 26 Oct 2012

“Sept [or OCT?] 2012[???]:”  “States she was sexually assaulted by a superior officer [CWO], reported this, and was transferred to Hawaii from Camp Lejeune. She claims to have asked a Uniform Victim Advocate to help throughout the trial but was ignored. Husband deployed during this time, and didn’t help upon return so he could enjoy his leave.” 

“Patient report being the victim of sexual assault in September 2012 by a
warrant officer, not in her line of command; she reported his cornering her and touching her; subsequently, he offered to help her with her homework, which she declined. Patient asked her SSgt to talk with him. She said that she did not want to be seen as trying to sleep her way to the top. Later, he tried again to corner [her] in his office. She, then, went above him and spoke to his WO2. The perpetrator is a WO1, who is married with five daughters. She is continually dealing with nightmares now, because she is not sure what will happen. She filed an unrestricted report and worries that he might snap and come after her. NCIS is currently investing the case to make sure she was the only one sexually harassed/abused. Perpetrator is now pending charges and she is unsure what will happen (unrestricted report of sexual abuse. Current symptoms include: Depression, chronic feelings of emptiness, irritability, anger dysregulation, decreased concentration, mood swings, sleep problems, distressing dreams, some avoidance of crowds/people, and extreme worry about cleanliness. Denies symptoms consistent with diagnosis of TBI, bipolar, or thought [disorder?])”

15 Jul 2013—Extensive AHLTA Note:  Majority of quotes come from this eval.

2013:  “She gave up on her marriage… Claims that other women contacted her about her husband’s infidelity.”

NJP:  2

- 20140606:	Article 128 (Assaults) on 20140425 physically assaulting SGT [Applicant’s husband] with your fists to the face and body (Applicant denies, but acknowledges ripping then husband’s car leather with a knife.  This offense not included when it was learned she was the registered owner of the vehicle.)
	Awarded:  RIR FOP RESTR EPD  Suspended:  RESTR
- 20140723:	Article 134 (General article) ADULTERY
	Awarded:  RIR FOP RESTR EPD  Suspended:  NONE

08 Sep 2014—SEPARATION PHYSICAL EXAM: 
YES checks by #17.c.-g.

Signed off by a D.O., CDR, MC, USN
24 Sept 2014—ADMIN SEP:  CO, Marine Corps Base Hawaii
Subj: RECOMMENDATION FOR ADMINISTRATIVE SEPARATION DISCHARGE IN THE CASE OF
PRIVATE FIRST CLASS [Applicant] USMC
Ref: (b) MARADMIN 328/10
1. You will be administratively separated under paragraph 6210.3 of
reference (a) with an other than honorable characterization of service by
reason of pattern of misconduct.
2. In accordance with reference (b), you were evaluated by a medical
provider and were not diagnosed with Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI).

03 Oct 2014—DISCHARGE:  after 5 Years  06 Months 11 Days active service.

POST SEPARATION:

08 Jan 2016—NDRB Documentary Review:
NDRB Documentary Review Docket Number:  MD15-01338
NDRB Documentary Review Findings:  Proper as issued and that no change is warranted.

14 Feb 2018:  Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire

“Currently [Applicant] currently lives in Savannah with her fiancé of a year and a half and her 2 daughters age 5 and 7 years. She is working full time and taking care of her children. Typical Day-She is up at 625 am, takes out the dog, and gets the children up and ready for school. They eat breakfast and are out the door by 7:40 am. She drives her fiancé to work and then drives the kids to school. They are in 1st grade and Kindergarten. She then goes to work until 3 pm. Occasionally, 
she stays late for big projects. After picking up the girls, they complete homework, cooks meal from scratch and goes to bed-930-1030pm. She is able to drive and maintains a driver's license. She drove today from Savannah. She is able to complete ADLS and IADLS independently.
She handles the finances and is responsible to pay bills.

Currently she works full time as a stone cutter…since July 2017.  Reports excellent job performance and takes pride in her work and job performance. She will not miss days of work given her symptoms. She reports that she was erroneously given a diagnosis of Bipolar Disorder and then diagnosed with Borderline Personality Disorder and Veteran reports that MST occurred [sic] 9/2012 by a superior officer who perpetrated unwanted touching and groping for one month duration. She reported it to the UVA [Uniformed Victim Advocate] and the perpetrator was court martialed and found not guilty. She reports that she still ruminates and blames herself over the fact she could not remember aspects of the trauma during the trial. She reports that he followed her in his truck for about one month after the incident.  She also felt a great deal of guilt she could not [sic]] prosecute him, as he may have done this to other women.”

“Does the Veteran have a diagnosis of PTSD that conforms to DSM-5 criteria based on today's evaluation?
[ ] Yes  [X] No…

Mental Disorder Diagnosis #1: Other Specified Trauma and Stressor Related Disorder (OSTASRD) ICD code: F 43.8”

04 Aug 2020—VA ELIGIBILITY VERIFICATION DATA, SCREEN <11>:

“9411-POST-TRAUMATIC STRESS DISORDER(30% SC)… [EFFECTIVE] FEB 15, 2016” almost 1.5 years post discharge.

COMMENT:  Against a childhood background of geographical family and emotional shifts, including the development of anger/borderline personality like behavior (anger management) issues, and an instance of Childhood Sexual Trauma, the Applicant embarked on a marriage early in her USMC career, later allegedly complicated by MST.  While PTSD was not diagnosed during her enlistment or initially by the VA post discharge, VA records do show a disability rating of 30% under VA Disability Code 9411 for PTSD effective 15 Feb 2016 (almost 1.5 years post discharge) with an apparent diagnostic change to the related diagnosis of “Other Specified Trauma and Stressor Related Disorder” in 2018, which may, simply, represent a “distinction without a difference.”  In any event, there would appear to be a mitigating but not exculpating nexus between the Applicant’s misconduct and the above listed conditions.  Nonetheless, consideration of a change of characterization to General (Under Honorable Conditions) is recommended.	

During the personal appearance hearing, the Applicant testified that she was sexually assaulted by a Chief Warrant Officer in her command while stationed at Camp Lejeune.  She reported the sexual assault and her command supported her by ensuring that there was no further contact between her and the Chief Warrant Officer.  The Applicant’s spouse came home from deployment on emergency leave to care for her during this time.  However, the Applicant’s relationship with her spouse quickly eroded and became argumentative due to the circumstances and the Applicant’s spouse subsequently left to visit with his family instead while he was on leave.  The Applicant states that this started a major divide in their relationship.  Upon being transferred to Hawaii, the Applicant’s relationship with her spouse continued to deteriorate.  During one instance, the Applicant testified that she slashed the seat of her spouse’s car with a knife during an argument and military police were called to the scene.  This incident was reported to her command and her command charged her for assault at NJP.  The Applicant testified that an assault never occurred.  Subsequently, the Applicant’s command issued a military protective order (MPO), prohibiting contact with her husband.  The Applicant’s service record contained two retention warning counselings for violation of the MPO, one for texting her spouse and the other for contacting her spouse through a third party.  The Applicant stated that she contacted her spouse via text regarding a birthday party for one of their children which was held at the barracks and her spouse attended the party.  The Applicant did not recall violating the MPO by contacting her husband through a third party.  During this time, the Applicant testified that she filed for divorce and began a sexual relationship with another Marine.  The Applicant’s command processed her for adultery at Special Court Martial, but agreed to drop these charges at court martial in exchange for pleading guilty to the charges and agreeing to waive her right to an administrative separation board.  The Applicant was found guilty at NJP for adultery for a sexual relationship with a male Marine which occurred nine months prior to her first NJP.  The Applicant testified that these events occurred after her first NJP.      

The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant states that her new command in Hawaii was not supportive of her as a victim of sexual assault by not providing a Uniform Victim Advocate and giving her additional duties that conflicted with the trial in Camp Lejeune.  There is insufficient evidence in the record, nor has the Applicant produced any evidence, to support the contention that her command did not provide the support required for a victim of sexual assault.  Further, the Applicant testified that the circumstances surrounding her two NJPs were different than described in her service record.  In this case, the Applicant’s statements alone do not overcome the government’s presumption of regularity.  As such, the NDRB assumed that the Applicant’s NJP charges were valid. 

However, when reviewing discharges, the NDRB 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 determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included two NJPs for violation of Article 128 (Assault) and Article 134 (Adultery) of the UCMJ and two retention warning counselings for MPO violations; this was a willful failure to meet the requirements of her contract honorably.  However, the Applicant contends her PTSD, MST, and mental health were mitigating factors in her misconduct.  The NDRB requested the Applicant’s medical treatment records for both in-service and post-service medical treatment from the VA and conducted a thorough review.  The Applicant stated that the charges against the Chief Warrant Officer were dismissed at court martial, however, the NDRB finds the Applicant’s testimony plausible that a sexual assault occurred.  This case however, is aggravated by the Applicant’s assault of her spouse documented in her service record and her statement of slashing her spouse’s car seats with a knife.  The NDRB determined that the nature of the misconduct fell outside of the guidelines for liberal consideration afforded by the Kurta, Wilkie, Hagel, or Carson Memos.  Though the Applicant may feel that her PTSD, MST, and mental health was the underlying cause of her misconduct, the record reflects willful misconduct that demonstrated she was unfit for further service.  

The Applicant contends that her post-service conduct warrants consideration for a discharge characterization upgrade as evidenced by securing continuous employment to provide for herself and her daughters.  Further, the Applicant states that she has rekindled a friendship with her now ex-husband to put the needs of their daughters first.  The Applicant’s ex-husband provided a character statement in which he affirms her positive character, their rebuilt relationship and mutual care for their children as co-parents, and he supports an upgrade to her discharge characterization.  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.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB 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.  Based on the candid nature of the Applicant’s testimony of the relationship struggles with her ex-husband, her admission to her faults, her strive to have a positive co-parenting relationship with her ex-husband, and the support that her ex-husband provides in his character statement, the NDRB found that a change in characterization of service to General (Under Honorable Conditions) was warranted.  Relief granted. 

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the NDRB found .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKA1, and the reentry code shall  RE-4.  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.