ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20230522
Characterization of Service Received:   
Narrative Reason for Discharge:   PATTERN OF MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT] 

Applicant’s Request:	Characterization change to:	requested but not specified
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20110118	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20130813	Highest Rank/Rate:  LCpl
Length of Service:  02  Year(s)  06  Month(s)  26  Day(s)
Education Level:  12	AFQT:  53
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.3 (NFIR)   Behavior/Conduct: 3.6 (NFIR)  
Fitness Reports: 

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

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

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  4

- 20120120:	Article 92 (Failure to obey order, regulation) x2
	Article 80 (Attempts)
	Awarded:    Suspended:  NONE

- 20120921:	Article 92 (Failure to obey order, regulation) x2
	Awarded: RIR RESTR Suspended:   

- 20130305:	Article 92 (Failure to obey order, regulation) x2
	Awarded: RIR RESTR EPD Suspended:   

- 20130502:	Article 92 (Failure to obey order, regulation) x2
	Article 134 (General article)
	Awarded: RIR RESTR EPD FOP Suspended:   

Retention Warning Counseling:  2

- 20120305:	For failure to follow the Commanding Officer’s issued order to not consume alcohol until the recommended alcohol treatment was completed.

- 20130201:	For failure to complete the alcohol rehabilitation aftercare program.

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 6 June 2007 until 26 November 2013. 

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 a characterization of service upgrade from Under Other Than Honorable Conditions to Honorable
2.	The Applicant claims that PTSD, TBI, other mental health issues, and sexual assault/sexual harassment were contributing factors
Discussion

Date:  20240111		Location:  WASHINGTON D.C.	Representation:  

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

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

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 92 (Failure to obey order, regulation) on four separate occasions
Article 80 (Attempts)
Article 134 (General article)

:  The Applicant seeks a characterization of service upgrade from Under Other Than Honorable Conditions to Honorable; and further contends PTSD, TBI, other mental health issues, and sexual assault/sexual harassment were contributing factors.

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 did not exist during military service; c) the condition/experience did not mitigate 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: ALCOHOL DEPENDENCE WITH CONTINUOUS DRINKING BEHAVIOR, ADJUSTMENT DISORDER,  CANNABIS DEPENDENCE - IN REMISSION, ALCOHOL DEPENDENCE (ALCOHOLISM),  ADJUSTMENT DISORDER WITH ANXIETY, ALCOHOL DEPENDENCE (ALCOHOLISM) (USN)
Suggestion of a Bipolar Spectrum Disorder (POST DISCHARGE)

	
2.	A.	Were these conditions present at time of misconduct?	Yes, except Bipolar Disorder less certain	
	B.	Were these conditions mitigating for the misconduct?	Yes, limited not technically exculpating	
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:	REQUEST ISSUES INCLUDE:

HISTORY INCLUDES:

PRIOR TO ENLISTMENT:
Date of Birth:  

Education Level:  12  

ALCOHOL AND POLY SUBSTANCE ABUSE HISTORY—see below

MEPS:  
     AFQT:  53 

18 Jan 2011—ENLISTMENT: @ Age 19
MAINTENANCE MANAGEMENT SPECIALIST

Visit for: military services physical separation on 20 Feb 2013

Date Onset:	
Unknown	
Date Reported:	
20 Feb 2013	

Source:	
Encounter	
ICD:	
V70.5	

ALCOHOL DEPENDENCE WITH CONTINUOUS DRINKING BEHAVIOR on 11 Feb 2013

Date Onset:	
Unknown	
Date Reported:	
11 Feb 2013	

Source:	
Encounter	
ICD:	
303.91	

 
ADJUSTMENT DISORDER WITH ANXIETY on 24 Jan 2013

Date Onset:	
Unknown	
Date Reported:	
24 Jan 2013	

Source:	
Encounter	
ICD:	
309.24	

 
CANNABIS DEPENDENCE - IN REMISSION on 01 Feb 2012

Note Written by _____________ @ 22 Feb 2013 1749 TST
LIP Interview     94/320
Met with patient for 30 minutes. Discussed events that led to her referral. Patient's history of substance use is consistent with what was disclosed to her counselor. Patient denied any additional drug use such as illicit drugs, designer drugs or prescription drugs. Patient reports her last drink was Feb 4th and has been able to abstain from alcohol due to being on a command directed no drink order and being told if she gets caught drinking she will go to the brig. Patient states that this referral is due to being found at the E-club drinking when she is not supposed to be there. She states that she “eventually” wants help with her drinking, but not now. She wants to see if her current drinking behaviors is due to “this environment”; she states she hasn’t been of legal age to drink in the US and wants to see if she will be drinking like she does now in the US. Patient endorses guilt about her drinking especially due to her parents concerns. She endorses continued AA meetings twice/week but denies having a sponsor. She
reports she is spiritual and endorses believing in a higher being, but denies going to church and denies need for chaplain referral. Patient reports that her current stressors are her pending batallion level NJP for breaking an order and the USMC in general. Patient is currently engaged with an integrated behavioral health consultant for adjustment disorder with anxiety after substance abuse counselor referred her due to having chest pain and anxiety during her follow
up appointment. Patient denies any current anxiety symptoms. Patient denies any sleep complaints or nutritional complaints. The patient denied any depressive, hypomanic, manic, or psychotic symptoms. Patient denies any additional stressors, symptoms, medication side effects or unaddressed pain…
Mental Status Examination: The patient arrived on time dressed in UOD and appropriately groomed. The patient’s behavior was pleasant and cooperative.   

30 Mar 2012—[175/320] “Note Written by _______  Patient was present in team conference group. Patient is co-operative. Patient's participation level was active and appropriate. Discussion was about treatment plans/activities
for the day, patient’s progress and assignments. Patient identified mood as “happy“, affect appears congruent with mood. On a scale of 1-10 (10 greatest), patient reported sleep a 10, concentration a 10, energy 10, and appetite 10. Patient’s pain level is 0. Patient did not identify any concerns regarding his
treatment plan. Plan: continue with established treatment plan/review with patient in IDT.
Note Written by __________
The following were present for Interdisciplinary Team Review: the patient, the senior counselor, the LIP. The patient was involved in a discussion about her treatment. The patient appears to be doing moderately well on her assigned treatment plans; she is reported to be active and appropriate in group. The patient is current on problem area assignments. The patient currently appears to be in agreement that she has a problem with her substance of choice and agrees with her diagnosis. The patient has a 12 step sponsor. Patient describes mood as ‘happy and excited’…co-operative and…currently denying any thoughts or intent to harm himself or anyone else. Patient is denying any delusions or hallucinations at this time. No evidence of thought disorder at this time. The following adjustments were made to the patient's treatment course and treatment plans: Patient's probation was voided and patient was given a written warning
for sleeping in her room while on break from her scheduled program requirements. Patient will follow through with a family visit with her father this weekend for therapeutic reasons which will be annotated in her treatment plan.”

10 Apr 2012—[158/320]
“IDENTIFYING DATA:
The patient is a 20 year old, single…AD/USMC/E3, from
7th Communications Battalion Unit 35610 FPO AP 96606-5610 UIC # 21635, with 1 years, 2 months active duty service. The patient was referred for
treatment to the Substance Abuse Rehabilitation Program (SARP), Naval
Medical Center, San Diego (NMCSD).
SUBSTANCE USE HISTORY:
The patient was a command referral for treatment from NH Okinawa due to an alcohol related incident
(ARI) on 31Dec11. The patient reported she was highly intoxicated at about 2330 on New Year’s Eve.
The patient reported she was attempting to enter Camp without a liberty card when she was questioned by camp guard. The patient stated she was charged with two violations of the UCMJ and received the maximum punishment at Company level NJP. The patient reported several ARIs throughout her military career starting with having numerous undocumented alcohol related incidents, starting from the first week she was with the command, when she was caught drinking underage. The patient was screened and recommended for Residential Treatment on 01Feb12. The patient was checking in daily and given breathalyzers as part of Pre-Care
before arrangements could be made for her to attend Residential Treatment. The patient reported that on 18Feb12 she went to the hospital and had a BAC of 0.291 during a blackout when she did not recall how she was injured. The patient reported that she may have been assaulted. The patient's first use of alcohol was at the age of 12 in the amount of six 12 ounce beers and two
standard mixed drinks. The patient reported a regular pattern of use with alcohol from age 13 in the amount of four to eight standard mixed drinks once a month. The patient reported drinking alcohol from
the ages of 14 to 15 in the amount of five to nine standard mixed drinks two times per month. The patient reported drinking alcohol from the ages of 16 to 20 in the amounts of 10, 12 ounce beers and five to 15 shots of liquor daily. The patient reports her last use of alcohol was on 18Feb12 in the amount of 20 plus shots of liquor and ten bottles of beer.
The patient's first use of Cannabis was at the age of 15. The patient reported that she had smoked five bowls daily for the past 4 years. The patient's first use of Adderall was at the age of 17 in the amount of 160mgs a day.  The patient's first use of Spice was at the age of 18 in the amount of two bowls a day. The patient reported drinking alcohol from the ages of 14 to 15 in the amount of five to nine standard mixed drinks two times per month. The patient's first use of Cocaine was at the age of 18 in the amount of 
1grm.The patient reported that she only did this two times as cocaine was
too expensive.  The patient reports a history of poly-substance abuse. The patient identifies substance use has affected legal areas of life. The patient reported that alcohol has affected her job.  The patient was diagnosed with Alcohol Dependence (303.90), Nicotine Dependence (305.1) and
Cannabis Dependence (in remission) by Lt. X, LCSW, USN US Naval Hospital 
Japan 02Feb12.
Alcohol Dependence (303.90)

12 Jun 2012—[132/320]:  
“11APR12 with guarded prognosis. Patient indicated the date of her last drink as 18FEB12. Patient
minimally participated in introductions and discussion centered on coping with social and emotional risk
factors for relapse within past week. On patient’s group check-in sheet she indicated that she is attending
AA 5x/week and is working the 12-steps with sponsorship. At this time the patient's progress is judged as
guarded.”

27 Jul 2012—[124/320]
“Subjective
Attended one hour CCG since. Pt reported that she completed a residential treatment but since there is one an MPO order into one
of the residential CCG group member, she was transferred to IOP CCG group. Pt stated that she doesn't do anything on her free
time but just stay in the barracks. She was encourage to participate in alternate sober activities but reluctant to do so. Continued
recovery appears to be fair.
Objective
Mental Status: The patient arrived on time, appropriately groomed and dressed in civilian attire. Patient was alert, fully oriented, and
had appropriate eye contact. Patient mood was euthymic, with congruent affect. Speech, psychomotor, and thought processes
were within normal ranges. There was no evidence of any hallucinations, delusions, and bizarre thinking. Judgment and insight
were fair. Impulse control appeared within normal ranges. Patient denied any current suicidal/homicidal ideation, plan or intent.”

ASSESSMENT:
Multiaxial Diagnoses:
Axis I: Nicotine Dependence (305.1)
Cannabis Dependence (in remission)
Alcohol Dependence (303.90)
Axis II: None
Axis III: None
Axis IV: Financial, relationship, unresolved family of origin issues
Axis V 63

26 Oct 2012—[114/320] STR entry: 

Patient presented for 30 min to, Navy MORE Recovery Coach, under the impression that today is her appointment. Writer explained to pt that was expecting her yesterday at 1400 but pt was a no show. Patient expressed frustration about her confusing SACC schedule. Yesterday, she attended the mandatory MEF General's ' All Hands' meeting at a
short notice…
Patient reports her last drink was18 Feb 2012. Reports she has been attending 3 AA meetings and 2 online per week and it has been getting challenging for her to regularly attend meetings since she has been on restriction. Reports she had NJP for violation of the liberty log policy and resulted in her reduction in rate to E-2 from E-3, 8 months of non-rec and 60 days of restriction which will
expire on Nov 19, 2012.
Patient has not attended CCG's for awhile now and states 'I am done with CCG's per my aftercare plan'. Since patient's Residential
CCG has been managed by due to patient's case is under special circumstance (see AHLTA dated 12June 2012), writer and patient agreed to schedule a follow up with Poo on Nov 29, 2012 (1300) at Bldg 2384, Camp. Patient was provided with a reminder appointment card…
Objective
Mental Status: The patient arrived for this session appropriately groomed. Rapport was easily established and maintained. The
patient exhibited no signs/ symptoms of psychomotor abnormalities. Attention and concentration were adequate during the present
evaluation. The patient denied current suicidal or homicidal ideation.

29 Jan 2013—[p107/320] LCSW STR entry:

 1. ALCOHOL DEPENDENCE (ALCOHOLISM) 303.90
Procedure(s): -(H0004) BEHAVIORAL HEALTH COUNSELING AND THERAPY…-(H0006) ALCOHOL AND/OR DRUG SERVICES…
2. CANNABIS DEPENDENCE - IN REMISSION 304.33

05 Apr 2013—STR Alcohol related Internal Medicine entry [pp 65/320]:

“This is a 21 y/o female who was sent to the ER b/c of ETOH abuse. She was caught intoxicated at work this morning. She was supposed to go to the Brig, but they would not accept her b/c of her possible ETOH withdrawal history. She was directed to the ER. ETOH: last drink was early this morning (Friday morning). She stopped drinking in March 2012 during her rehab, but has been
drinking everyday since then, approx 12 to 18 drinks per day. She has no desire to quit. She has been in trouble at work multiple times b/c of her etoh consumption. She denies any DUI's. No SI/HI. She does have a HA and nausea + emesis (during the interview). No recent illness, no f/c/n/v. In the past, cessation from ETOH resulted in a HA, shaking, agitation, but she denies any seizures or delirium tremens. She was hospitalized 1x for ETOH withdrawal.
ER vitals: BP 108/57 HR 108 98% RA T98.1.
Current medication
None.
Past medical/surgical history
Reported:
Medical: Reported medical history Anxiety/Adjustment disorder
Alcohol abuse/dependence (prior rehab March 2012)
Repeat Alcohol offenses
.
Surgical / Procedural: Surgical / procedural history None
Personal history
Social history reviewed Tobacco: 1/2 ppd since 2007
Etoh: 12-18 drinks/day; drinking since age 13.
Family history
Family medical history Father and brother: alcoholics
… 
Visit for: military services physical separation (V70.5)

27 Feb 2013—SEPARATION PHYSICAL:
Last Name    PMOS
To: Installation Personnel Administration Center Subj: MEMORANDUM FOR THE RECORD
Ref: (a) MCO P1300.8
(b) MCO Pl00.16

Circle one:  (sepa;atiorl{Retirement from Active Duty
“You have been evaluated because of your planned'separation_ or Retirement from active _duty service. You have been found physically qualified to separate or retire…no medical condition has been noted that disqualifies you…
the. performance of your duties or warrants disability evaluation system processing. To receive disability benefits from the Department of the Navy, you must be unfit to perform the duties of your office, grade, or·rating because of a for- disease or injury incurred or exacerbated while' in receipt of Base pay…If you desire additional. information regarding these benefits, contact the·Department of Veteran's Affairs…”

13 Aug 2013—DISCHARGE:  UOTH (For “PATTERN OF MISCONDUCT”)
ETOH related issues
Length of Service:  02  Year(s)  06  Month(s)  26  Day(s)

POST SEPARATION:

05 Aug 2021 (over 8 years post separation)—VA;
 “HPI:
A… C… [married surname] Is a 29 y.o. female transfened from Medical Center 08/0512021 with diffuse, maculopapular rash. She does have a history of anxiety/depression and was recently started on Lamtctal 3 weeks ego. She has been ramping up the dose from 25-> 75 mg daily…”

05 Aug 2022:  ORIGINAL DISABILITY CLAIM RECEIVED BY VA

07 Aug 2022 (9 years post discharge)—“HealthPartners…REGIONS HOSPITAL Department of Psychiatry Consult
"Patient seen, chart reviewed, full consult to follow. The patient is a 29 y.o. female admitted due to rash concerning for lamictal Induced TEN, but ultimately dx with morbllliform drug rash. Psychiatry consulted for Admit with severe rash from Lamlctal. Appears has untreated/undertreatedbipolar. Assist with new medication and facilitate outpatient treatment (doesn't have appt til November). Patient has a hx of depression and anxiety dx several years ago postpartum the birth of her first child and has been on venlafaxlne and sertraline for most of that time. She has had significant GI side effects with this and has been told recently to stop the sertrallne. She was seen by a psych provider for the first time about 2 weeks ago, who had concerns for bfpolar and added lamlctal to her medication regimen, and both AD medications were stopped. She is now admitted with a rash which began with an increase in the lamictal dose up to 75 mg. There Is a family hx of bipolar but the patient denies clear manic symptoms in the past. She does note difficult mood Instability and reactivity over the course of the day which has been fairly consistent and persistent, but definitely Increased over the past several years with the birth of her two children, ages 2.5 years and 6 months. She has a hx of alcohol use disorder but has been abstinent for 8 years. She does use cannabis regularly per family. She has a hx of trauma with a beating, possible rape, and TBI [PAH testimony noted bleeding from occipital (?) region on awakening from inebriated state on liberty] while In the military. She will not discuss this incident. She was less than honorably discharged related to suicidal threats In response to stress, but denies SI currently and has no hx suicide attempts or SIB. She has never had psychotherapy…

A/P: Patient with a hx of mood instablllty and bursts of Irritability/acting out which are short-lived and reactive In the setting of trauma, PTSD symptoms, and ongoing significant substance use. She indicates a high degree of stress recently which Is likely exacerbating her symptoms…not a history of consistent/sustained shifts In mood or vegetative symptoms that would suggest bipolar disorder. Onset of her difficulties coincides with a significant TBI and physlcalfsexualassault In the military.

lmpressionJRecommendatlons:
Mood disorder NOS
Other mixed anxlatN disorder, r/o PTSD
Rio mood disorder due to TBI Alcohol use disorder, In remission
-stop lamotrigene”

04 Nov 2022 (over 9 years post discharge)—WISCONSIN DEPT OF VETERANS AFFAIRS Rating Decision:
"Credible supporting evidence that the claimed in service stressor actually occurred" means that there is a legal standard that must be met and that the Veterans report of the incident must be supported by service or civilian documentation of the incident, or if that is not available, there must be other evidence that would lead to the reasonable conclusion that the incident occurred. Such other evidence would generally include military or civilian documentation of behavioral changes after the incident which could reasonably be expected from a person who had undergone personal assault. Such changes include, but are not limited to: sudden requests for other duty assignments without justification, obsessive behavior (such as over, or under, eating), increased disrespect for military or civilian authority etc. (38 CFR 3.304)

Entitlement based on personal assault/Military Sexual Trauma (MST) is warranted when (I) service records and/or alternative evidence shows the claimed in-service personal assault occurred, (2) a diagnosis of PTSD is rendered and (3) the examiner links a diagnosis to the claimant's history of personal assault. When the record fails to clearly show the event occurred, identified markers (indicators of the effect or consequences of the personal trauma on the Veteran) are submitted to the examiner for consideration. If the examiner offers a credible, clear, and nonspeculative assessment that the evidence of record is consistent with the occurrence of the claimed assault, that opinion can constitute credible supporting evidence that the claimed in­ service stressor occurred. (38 CFR 3.304)

At your recent VA examination, the examiner determined that you do not have a current diagnosis of PTSD. The examiner noted that you do not meet the criteria for a diagnosis of PTSD as set by the DSM-V.

In the absence of a clinical diagnosis of posttraumatic stress disorder (PTSD), marker evidence cannot be used to corroborate the alleged stressor, thus service connection for treatment purposes only under 38 U.S.C. chapter 17 is not warranted and must be denied. (38 CFR 3.303, 38 CFR 3.304)

COMMENT:  

Sadly, against a formative background including parental divorce at age 5 and their separate remarriages at age 10, the Applicant recalled a benign “first drink” at age 12 from her then 15-year-old brother, which appears to have become excessive imbibing early on to include experimentation with marijuana.  Having been encouraged by her two USMC older brothers (who had followed the example of their CWO USMC father), she enlisted in the USMC.  Unexpected adjustment difficulties associated with her duty assignment to Okinawa in the context of a military culture emphasizing social alcohol imbibing provided an unfortunately aggravating coping tool leading to blackouts and a series of clashes with good order and discipline.  Consequences, also, included awaking with profuse bleeding from the “back of my head…neck” which she believes resulted in “my TBI” and led to her subsequent infractions, alcohol treatment failure and OTH discharge as well as a alcohol related MVA shortly after discharge.  Subsequently, she maintained a 9-year period of sobriety during which she managed to obtain employment in a local church related charity, eventually, achieving executive-level responsibilities and (un-submitted) testimonial letters.  On the social front, she married and gave birth to two sons.  However, her husband proved less than able to sustain parental responsibilities resulting in divorce. PAH testimony included much regret and responsibility taking for her misconduct.  She felt she “was good at my job but couldn’t manage my liberty.”  She acknowledged having sought therapy and having been granted VA acknowledgment and therapy benefits for mood disorder, apparently “Bipolar Disorder [Type not specified]” and TBI (USMC had determined no evidence of TBI) but did not meet VA requirements for PTSD; nor did Service Treatment related Records show a diagnosis of PTSD, TBI or MST; and, although mentioned in her application, she withdrew MST from her current appeal due to lack of recollection of MST.  Testimony inconsistencies suggested noncompliance with treatment recommendations including resuming alcohol consumption after a 9-year period of abstinence (though continues occasional AA participation); and, largely discontinuation of mental health treatment (starting with formal psychiatric discontinuation of Lamictal due to reportedly severe Stevens-Johnson Syndrome) but is looking to increasing her contact with the VA.  She denied having experienced periods of mania or hypomania but acknowledged ongoing headaches she attributes to her above noted head trauma while stationed in Okinawa.  Sadly, while deserving credit for her professional performance, post discharge professional accomplishments and maintenance of parental responsibilities, the available evidence provides insufficient support for significant mitigation due to the seriousness of her misconduct attributable primarily to her Alcoholism.  At closure of her PAH, she indicated she had not had sufficient time to prepare for her PAH and reported she felt she had additional pertinent documentation, which she indicated she would attempt to submit that day.  However, to this date, these have not been received.  In summary, the Applicant’s Alcohol (and other substance involvement) Use Disorder appears to have been well established prior to her enlistment and, at least alcohol related component, flourished due to unanticipated adjustment difficulties during active service. While some of the Applicant’s post discharge treatment (e.g., transient Lamictal) is compatible with notes indicating consideration of a diagnosis of a Bipolar spectrum disorder by civilian and VA clinics nearly a decade post discharge, though full criteria do not appear to have been met. The Applicant was strongly encouraged to pursue her transition to VA care.  While a nexus would appear to exist between her misconduct and the disorders diagnosed during active service, and the Applicant’s reported initial post discharge indication of noteworthy professional achievement are noted, these do not appear to satisfy Kurta guidance.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

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, the Board found the Applicant engaged in conduct that constituted a significant departure from the conduct expected of members of the Naval Service.  In making its determination, the Board considered four items.  First, the Applicant was the subject of four non-judicial punishments (NJP) for violating the conditions of the liberty risk program and disobeying direct orders to abstain from drinking alcohol.  Second, the Commander recognized the Applicant’s alcohol dependency and initially granted leniency and took action on the Applicant’s behalf to rehabilitate her. Third, the Applicant did not take advantage of the rehabilitative efforts afforded to her and continued to drink alcohol.  Fourth, the Applicant has a preservice history of alcohol and drug use. Repeated failures for alcohol rehabilitation are grounds for administrative separation.  This can result in an unfavorable characterization of service.  The Applicant provided no additional documentation for the NDRB’s consideration or to rebut the Government’s presumption of regularity that was not already documented in his official military record of service and medical record.  Relief denied.

More specifically, 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.  Though the Applicant may feel that their Mental Health was the underlying cause of their misconduct, the record reflects willful misconduct that demonstrated the Applicant was unfit for further service.  The evidence of record did not show that the Applicant’s Mental Health was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning their actions.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct.  

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT - PATTERN OF 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.