ex- CAPT, 

Current Discharge and Applicant’s Request

Application Received: 20230522
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
Authority for Discharge:   MARCORSEPMAN 1900.16F per 4102 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: SECRETARIAL AUTHORITY
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	 19960110 - 20010805  

Period of Service Under Review:
Date of Appointment:   20010806	Age at Commissioning:  
Years Contracted:  Indefinite
Date of Discharge:  20091127	Highest Rank:  CAPT
Length of Service:  08  Year(s)  03  Month(s)  21  Day(s)
Education Level:  16	AFQT:  72
Deployment/Operation: 

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

Awards and Decorations (per DD 214):	Rifle  Pistol (x2) AMSF NMCAM AFSM ICM SSDR(x2) HSM GWOTSM NDSM GCM NUC LoC LoA(x5) 

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

- 20090409:	Article 86 (Absence without leave, etc.) 
	Article 107 (False official statements)
	Article 133 (Conduct unbecoming officer)
	Awarded:    Suspended:  

Administrative Corrections to the Applicant’s DD 214

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

	  “2001 08 06”
  “08 03 21”
Block 12d, Total Prior Active Service, should read: “05 07 26”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 960110 UNTIL 010805”

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.  Secretary of the Navy Instruction 1920.6D (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 24 July 2019 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 11 May 2018.

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 the discharge is in error due to both procedural and equitable reasons.
2.	The Applicant requests liberal consideration under the new federal decisions regarding post-traumatic stress disorder (PTSD) and other behavioral health issues.

Discussion

Date:  20231017		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.  The Applicant’s service record documents completion of a deployment from January to July 2005 in support of Operation IRAQI FREEDOM.  Pursuant to § 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave, etc.) 
Article 107 (False official statements)
Article 133 (Conduct unbecoming officer)

:  The Applicant contends that the discharge is in error due to both procedural and equitable reasons; and further, the Applicant requests liberal consideration under the new federal decisions regarding PTSD and other behavioral health issues.

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 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 – none (military)
PTSD, TBI, Major Depressive Disorder (VA)	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	No (see below)	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Unclear – final physical not found	
4.	Medical board member comments:	Reviewed the Applicant’s medical treatment records, military service records, testimony, and all applicant-provided materials.

The Applicant, a Marine officer, was discharged in 2009 for misconduct.  In rebutting his discharge, the Applicant contends (in part) that PTSD negatively affected his judgement and should serve to mitigate the severity of his discharge characterization.  Since discharge, the Applicant has been awarded 100% service-connected disability by the VA (100% for PTSD).

Brief timeline:
10 Jan 1996 – 06 Aug 2001 – Prior enlisted period
06 Aug 2001 – Commissioning 
Jan – Jul 2005 – OIF deployment (MALS-42)
24 Jul 2006 – PDHRA (negative findings)
09 Apr 2009 – NJP (Art 86, 107, 133)
27 Nov 2009 - Discharge

The combination of the Applicant's medical treatment files, submitted materials, and Applicant testimony lends to the following conclusions:
1.	Contemporary records surrounding the deployment and in-service period failed to demonstrate significant mental health conditions during this Applicant’s last years.  The Applicant’s PHDRA and in-service records failed to record any significant issues.  Further, though argued otherwise, his successful entrance and engagement into law school furthers this contention.  
2.	Secondarily, as stipulated in the Kurta memo, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI…”  Though likely under-supervised, given the decommissioning of his squadron, the Applicant had a duty to perform military-related work during regular duty hours unless specifically told otherwise.  Instead, the Applicant used confusion about his law school program start date to deceive his command.  This premeditated behavior falls outside liberal consideration guidelines.
Based this information, I do not find a mitigating nexus between the Applicant’s misconduct and his mental health.	

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 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 his actions.  After an exhaustive review, the NDRB determined that the Applicant’s PTSD did not have a nexus to his actions, and therefore did not mitigate the Applicant’s misconduct.  

However, 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.  

The record shows, the Applicant received NJP on 9 April 2009 for violations of Articles 86, 107, and 133 of the UCMJ that stemmed from an incident in which the Applicant began moonlighting, was confronted about it, and initially lied to a superior officer about the times during which he was moonlighting.  The Applicant was assigned to Marine Aviation Logistics Squadron at the time of its preparation for deactivation.  As the Applicant had been accepted into the Marine Corps Excess Leave Program (Law) (ELP(L)), he was given minimal responsibilities as the Reserve component at NAS shifted to AFB.  The Applicant found himself with minimal duties, minimal leadership presence, and wide latitude so long as he accomplished his assigned tasks.  Facing a reduced paycheck while participating in ELP(L), but also paying over $3,000 per month in alimony and child support, the Applicant sought permission to work as a security guard on base, which he was only supposed to do on days he was in class for ELP(L) or after hours, not on his Marine Corps duty days, in order to avoid double dipping.  However, the Applicant did, in fact, work on duty days in violation of regulations which led to the Article 86 violation.  Furthermore, it came to the attention of the Executive Officer of Marine Aircraft Group, to which the Applicant had been assigned upon the deactivation.  In his first encounter with the XO who challenged the Applicant’s moonlighting arrangement, the Applicant made an impulsive false statement that he was only working as a security guard after normal Marine Corps working hours, weekends, and holidays, which led to the Article 107 violation.  The command asserted that the Applicant had acted dishonorably by misleading the command about his participation in the ELP(L) and was additionally charged with violation of Article 133.  The Applicant claims to have not been aware that his moonlighting during work hours constituted double dipping, but takes full responsibility for that ignorance as well as his integrity failure in lying to the XO in a moment of panic and weakness, which he deeply regrets.

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.  In making its determination, the Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct, to include his earning of five Letters of Appreciation, a Letter of Commendation, two Sea Service Deployment Ribbons, a Humanitarian Service Medal, the Armed Forces Service Medal, the Global War on Terrorism Service Medal, the National Defense Service Medal, the Iraq Campaign Medal, a Navy Unit Commendation, a Good Conduct Medal, a Navy and Marine Corps Achievement Medal and a Strike/Flight Air Medal, earned as an Aerial Observer in helicopters during approximately 150 combat missions in Iraq.  The Board noted that the Applicant’s acceptance into the Marine Enlisted Commissioning Education Program, his pursuit of qualification as an Aerial Observer beyond the requirements of his assigned duties, his acceptance into ELP(L) and consistently high fitness report markings demonstrated his initiative and were indicative of a promising young officer.

Although the Board found no evidence of impropriety in holding the Applicant accountable for his ethics and integrity violation, nor could it establish a medical nexus that excused his actions, the Board did discern a level of inequity in that the Applicant was not retained, but discharged.  In evaluating the Applicant’s reported misconduct, the Board acknowledges that the Applicant’s momentary lack of integrity was a serious breach of his obligation to the Marine Corps, but did not consider that it reflected a permanent and unredeemable character flaw that warranted separation, especially considering the circumstances in which the Applicant found himself.  The Applicant’s strong fitness reports, right up to and through the time of his misconduct, demonstrate that he was doing his job and doing it well.  The Board also considered how the surrounding environment/circumstance impacted the Applicant’s poor reasoning of minimal supervision; limited responsibility and having no Marines to lead; confusion with an under tasked parent command; and a precarious financial situation, fostered the Applicant’s poor decisions.  In uncovering the Applicant’s moonlighting, the command had the opportunity to counsel and salvage the Applicant’s otherwise exemplary career.  The Board also considered a character reference from the Applicant’s immediate supervisor prior to the sundown of, whose leadership the Applicant might have benefited from had that mentor not been transferred away upon the unit’s deactivation.  Additionally, the Board took note that the Applicant had no other misconduct in his nearly fourteen years of active service.  In summary, the Board weighed the nature of the Applicant’s disciplinary infractions against the Applicant’s overall military performance and held that although the Applicant’s service was not flawless, his service was not so discrediting that his service could not be deemed honorable. 

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 JFF1.  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, go to https://www.va.gov/find-locations/?facilityType=health.