ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20230622
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:	 

Period of Service Under Review:
Date of Enlistment:  20170918	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20200908	Highest Rank/Rate:  Cpl
Length of Service:  02  Year(s)  11  Month(s)  21  Day(s)
Education Level:  12	AFQT:  74
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 4.1 (NFIR)   Behavior/Conduct: 4.0 (NFIR) 
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  NDSM GWOTSM LoA(x54) 

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

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  1

- 20191230:	Article 92 (Failure to obey order, regulation) 
	Article 113 (Misbehavior of sentinel or lookout) x2
	Article 134 (General article)
	Awarded: RESRT    Suspended:  NONE

Retention Warning Counseling:  3

- 20190816:	For violation of Article 92.

- 20191230:	For violation of Articles 92, 113 x2, and 134. 

- 20180319:	For violation of Article 92. 

NDRB Documentary Review Conducted (date):	20221014
NDRB Documentary Review Docket Number:	MD22-4648
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:

	  “UNDER  HONORABLE CONDITIONS (GENERAL)”
	  “ MISCONDUCT”

The NDRB will recommend to 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 1900.16 CH 2), effective 15 February 2019 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 contends his undiagnosed post-traumatic stress disorder (PTSD) and military sexual trauma (MST) were mitigating factors in his misconduct.
2.	BOARD ISSUE – The Applicant was diagnosed with a mental health condition while in service.

Discussion

Date:  20231002		Location:  WASHINGTON D.C.	Representation:  

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

As a result of the Applicant’s claim PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with § 1553.

The Applicant's record of service included:

For violation of Article 92.
For violation of Articles 92, 113 x2, and 134.
For violation of Article 92.

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 92 (Failure to obey order or regulation)
Article 113 (Drunken or reckless operation of a vehicle, aircraft, or vessel)
Article 134 (General article)

:  The Applicant contends his undiagnosed post-traumatic stress disorder (PTSD) and military sexual trauma (MST) were mitigating factors in his misconduct.

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 not 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 anxiety and depressed mood 
     Major depressive disorder, single episode, unspecified
      Adjustment disorder with mixed anxiety and depressed mood 
     Major depressive disorder, single episode, unspecified,
     Alcohol dependence, uncomplicated
Possible PTSD Spectrum symptoms (at least incident to childhood sexual victimization. Alcohol dependence, uncomplicated (USMC)
Post Traumatic Stress Disorder (PSTD) (ICD-10-CM F43.12), Insomnia (ICD-10-CM G47.09), Alcohol Use Disorder (ICD-10-CM F10.20), and Major Depressive Disorder (ICD-10-CM F33.9) with retrospective note indicating he has been receiving care at the VA since Sept 2020
PTSD (VA)
	
2.	A.	Were these conditions present at time of misconduct?	Yes, as noted above	
	B.	Were these conditions mitigating for the misconduct?	Yes, though less than 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, underwent physical and Clinical Psychologist Separation Examinations,  though records applicable to alleged MST could not be located. 	
4.	Medical Board Member comments:	HISTORY INCLUDES:

   PRIOR TO ENLISTMENT:

26 Aug 1999:  Date of Birth.

“Significant family history for depression, suicide, and disordered alcohol use…”  “The pt reports a hx of emotional,and physical by his father and his babysitter while growing up. he reports a hx of sexual abuse by his babysitter while in Middle school. he still has some flashbacks.  The pt reports that he has one brother and a half sister. his parents got divorced when he was 2 nd grade” 

Applicant’s PAH testimony acknowledged history of having been the victim of sexual abuse from a family member during “middle school” but unable to recall perpetrator…”

Education Level:   12

MEPS:  
     AFQT:  74 

18 Sep 2017—ENLISTMENT: @ Age 18

Dec 2019:  “2 DWIs…”
11 Oct 2019—(Physician Administered Annual Periodic Health Assessment (APHA) included:  “
“MHA2
2. In the PAST YEAR, did you receive care for any mental health condition or concern such as, but not limited to, post-traumatic stress disorder (PTSD), depression, anxiety disorder, alcohol abuse, or substance abuse?
No…
MHA3
3. What prescription or over-the-counter medications (including herbals/supplements) for sleep, pain, combat stress, or a mental
health problem are you CURRENTLY taking?
Please list
WELLBUTRIN
IBUPROFEN
MHA4a
4.a. How often do you have a drink containing alcohol?
Never”
MHA5
5. Have you ever had any experience that was so frightening, horrible, or upsetting that, in the PAST MONTH you:
MHA5a
5.a. Have had nightmares about it or thought about it when you did not want to?
Yes
MHA5b
5.b. Tried hard not to think about it or went out of your way to avoid situations that remind you of it?
Yes
MHA5c
5.c. Were constantly on guard, watchful or easily startled?
Yes

MHA5d
5.d. Felt numb or detached from others, activities, or your surroundings?
No
MHA5e
5.e. Repeated, disturbing memories, thoughts, or images of a stressful experience from the past?
Moderately
MHA5f
5.f. Repeated, disturbing dreams of a stressful experience from the past?
Moderately
MHA5g
5.g. Suddenly acting or feeling as if a stressful experience were happening again (as if you were reliving it)?
Moderately
MHA5h
5.h. Feeling very upset when something reminded you of a stressful experience from the past?
Moderately
MHA5i
5.i. Having physical reactions (e.g., heart pounding, trouble breathing, or sweating) when something reminded you of a stressful
experience from the past?
Moderately
MHA5j
5.j. Avoid thinking about or talking about a stressful experience from the past or avoid having feelings related to it?...
MHA5k
5.k. Avoid activities or situations because they remind you of a stressful experience from the past?
Moderately
MHA5l
5.l. Trouble remembering important parts of a stressful experience from the past?
Moderately
MHA5m
5.m. Loss of interest in things that you used to enjoy?
A Little Bit
MHA5n
5.n. Feeling distant or cut off from other people?
Not at All
MHA5o
5.o. Feeling emotionally numb or being unable to have loving feelings for those close to you?
A Little Bit
MHA5p
5.p. Feeling as if your future will somehow be cut short?
Not at All
MHA5q
5.q. Trouble falling or staying asleep?
Not at All
MHA5r
5.r. Feeling irritable or having angry outbursts?
A Little Bit
MHA5s
5.s. Having difficulty concentrating?
A Little Bit
MHA5t
5.t. Being “super alert” or watchful, on guard?
A Little Bit
MHA5u
5.u. Feeling jumpy or easily startled?
Not at All
MHA5v
5.v. How difficult have these problems (5e through 5u) made it for you to do your work, take care of things at home, or get along with
other people?
Not difficult at all
MHA6
6. Over the LAST 2 WEEKS, how often have you been bothered by the following problems?
MHA6a
6.a. Little interest or pleasure in doing things
Few or Several Days
MHA6b
6.b. Feeling down, depressed, or hopeless
Few or Several Days…
MHA7
7. Would you like to schedule an appointment with a health care provider to discuss any health concerns?
Yes
MHA8
8. Are you interested in receiving information or assistance for a stress, emotional, or alcohol concern?
Yes
MHA9
9. Are you interested in receiving assistance for a family or relationship concern?
Yes
MHA10
10. Would you like to schedule a visit with a chaplain or a community support counselor?
Yes
LIF1
1. Overall, how would you rate your health during the PAST MONTH?
Very Good…

HCPVI1
Based on your review of all responses and documentation, what is the IMR disposition of the Service member?
FULLY MEDICALLY READY. (Service member is current in PHA (completed), Dental Readiness Assessment classified as DRC1 or
2, immunization status, medical readiness laboratory studies, individual medical equipment; and without any deployment-limiting
medical conditions.)”

20 Dec 2019—SARP evaluation concluded:  ALCOHOL USE DISORDER, MILD.
 
19 Feb 2020—SEPARATION PHYSICAL EXAMINATION:  “MEDICALLY CLEARED TO SEPARATE”  

20 Feb 2020—Clinical Psychologist Note:

“A/P Written by MORRIS,HEATHER A @ 20 Feb 2020 1514 PST
1. Adjustment disorder, unspecified F43.20: Pt reported sleep disturbance, feeling scared, difficulty concentrating, nervousness, mood swings, hopelessness about the future, depressed mood, increased appetite, self loathing, heart racing. He noted these sx have worsened over the last 6 mo in the context of two DUIs and upcoming administrative separation from USMC. Pt has had
recurrent mood and anxiety sx since joining, but has not been consistent with treatment. Pt agreed w assessment of sx and plan to follow up w in Transition program if counseling is needed after separation”

30 Jun 2020—NMC San Diego  
      Adjustment disorder with mixed anxiety and depressed mood 
     Major depressive disorder, single episode, unspecified
     Alcohol dependence, uncomplicated

Additional Recommendations:
1. This service member is NOT fit for fully duty and has been initiated on Limited Duty (LIMDU) prior to hospitalization for his shoulder injury.

Command discharge recommendations are as follows:

- This service member should not operate or carry a weapon.

May 2018:  Returned to Sea Cadets—leadership activities.

Dates of “Other Clinical Encounters” listing diagnosis of “Adjustment disorder with mixed anxiety and depressed mood  or Adjustment disorder with other symptoms :”
2019:  29 Apr, 23 Jul, 27 Sep, 30 Sep. 
2020:  03 Jan, 13 Feb.
  
Sep 2020:  Later (Post Discharge) retrospectively reported as timeframe of initial treatment by VA.
 
Evaluation Childhood 5-11
• Need For Vaccination Hepatitis A
• Visit for: screening exam pulmonary
tuberculosis

08 Sep 2020—DISCHARGE: GUHC   Narrative Reason for Discharge: (Per DD 214) PATTERN OF MISCONDUCT
Enlistment:  02  Year(s)  11  Month(s)  21  Day(s)
Performance/Proficiency: 4.1 (NFIR)   Behavior/Conduct: 4.0 (NFIR) 

POST SEPARATION:

01 Dec 2020 (3 months post discharge)—VA “This patient has verbally consented to participate in the VA telemental health program using video teleconferencing equipment…located in VA San Diego:”

“Pt reports that his miliatry [sic] experience was pretty traumatic for him. He reports that "went through a break up with an engagement and had a hard time to get over it in 2019. he also indicates that his supervisor took advantages [sic] of him as he was under the influence of etoh and was forced to a sexual encounter with the supervisor in 2019 that affected him badely [sic]. He reports recurrent recollection of his traumatic incident. He does avoid conversations associated with the trauma and avoid getting close to people. He also reports
hyperarousal symptoms. Pt reports that he has been homeless [“couch surfing” per his PAH testimony] since d/c from the service and did apply for housing through the VA and seems to be positive as was told by his SW. He says did apply for the disability as well but still has not heard back…

-CHEMICAL DEPENDENDENCY HISTORY:
Alcohol: the pt reports that he drinks alcohol heavely [sic] until Dec 2019 following 2 DWI and following 6 months outpt SACC in Miramar as has been sober from etoh. the heaviest time of use was while in the Marine Corps.
pt reports a hx of 2 DWIs in Dec 2019.  He has had outpt alcohol treatment at Mirarmar in January - August 2020”

SOCIAL HISTORY:
“The pt reports a hx of emotional,and physical by his father and his babysitter
while growing up. he reports a hx of sexual abuse by his babysitter while in
Middle school. he still has some flashbacks.
The pt reports that he has one brother and a half sister. his parents got divorced when he was 2 nd grade and beleives [sic] that affected him in interrelationship and trust issues. He gets well along with his mother and sibililing [sic] but not with his father. He is single. Has no kids. he said has been homeless staying in his car mainly but lately has been staying with his friend.

DSMV [sic] DIAGNOSIS:
1. PTSD,chronic
2. Major depressive disorder, in partial resmission
3. Alcohol use disorder, in remissin [sic] since Dec 2019 per pt's self report
4. BPD, per pt's self report and hx
5. r/o alcohol induced mood disorder, in remission
6. chronic low back pain
7. possible hx of seizure vs alcohol induced seizure disorder?”

03 Apr 2021—Note by a VA PhD Psychologist included:
“…[The Applicant…has been diagnosed with Post Traumatic
Stress Disorder (PSTD) (ICD-10-CM F43.12), Insomnia (ICD-10-CM G47.09), Alcohol Use Disorder (ICD-10-CM F10.20), and Major Depressive Disorder (ICD-10-CM F33.9) for which he has been receiving care at the
VA since Sept 2020...[The Applicant] experienced significant trauma which occurred during military service. The Veteran meets all DSMV
diagnostic criteria for PTSD. The traumatic events that occurred during this service are consistent with development of PTSD, for which the Marine Corps did not provide appropriate support and treatment. It should be noted that while in the Marine Corps earned recognition for his dedication and service, including receiving the Outstanding Volunteer Service Medal and Honor Board for proficiency in his MOS. He volunteered for numerous parades and color guards, completed over 500 community service hours, assisted
with Marine Corps Reserves training, and was meritoriously promoted to rank of Lance Corporal…[The Applicant] has continued to actively participate in all recommended treatments, including completion of Cognitive Behavioral Treatment for Insomnia, attendance at weekly individual treatment for PTSD, medication…and… [has completed] intensive outpatient treatment (IOP)… program for alcohol use…He has also maintained employment, established a stable living situation…”

09 Sep 2020—Effective Date of VARD determination below:
     9411-POST-TRAUMATIC STRESS DISORDER(70% SC)” 

30 Dec 2022—NDRB DR/MD22-4648 (included USN Forensic Psychiatrist:  “NO CHANGE”  Text included:  
“Aviation Maintenance Data. Served 18 September 2017 lo 8 September 2020. General discharge, pattern of misconduct. Underage drinking; DUI, fled the scene of accident he caused. Claims PTSD, other mental health, sexual assault/ harassment are mitigating. Claims 2019 sexual assault by direct supervisor and then hazing when he reported [it]. One mental health note in record, inpatient menial health discharge summary - diagnosed with major depression in setting of relational problems. This summary noted history of diagnosis of PTSD - applicant apparently seeing military mental health at MCAS, civilian menial health, and non­ medical counselor, no notes in record. SARP evaluation 20 December 2019 alcohol use disorder, mild. Medical officer opinion is that there are no grounds for an upgrade. Record does not have enough information to find nexus between misconduct and mental health. “

March 30, 2023
“To Whom It May Concern:
This letter is to verify that…[the Applicant]  began attending the Dual Diagnosis Recovery Program (DDRP) in November 2022 for the treatment of Aicohol Use Disorder and Posttraumatic Stress Disorder and ongoing recovery. 
Currently. veteran’s Alcohol Use Disorder is in early remission, as he continues to report sobriety since 08/15/2022. The DDRP outpatient program provides 75-90-minute Cognitive Behavioral Therapy (CBT) groups, one time a week
for treatment of co-occurring disorders. The DDRP program is 16 weeks and offers psychiatric and social work services.  
 
06Jan2022
“To Whom It May Concern,
1. lam writing on behalf of …2. Mr … was assessed bv the Alcohol & Drug Treatment Program (ADTP) here at VA
San Diego on 11/25/20…12/24/20…4. He is diagnosed with PTSD and alcohol use disorder.
5. He is 70% VA-service-connected for PTSD…”

COMMENT:  

Against a formative background of family stressors including, “emotional, and physical by his father and his babysitter,” sexual abuse (family member or by his babysitter] while in Middle school, he still has some flashbacks [at PAH reported no recollection of identity of perpetrator or sequelae either prior to enlistment or currently], and parental divorce, the Applicant enlisted in the USMC out of admiration and wanting to be with “the best.”  He indicated significant adjustment difficulties to military life including the alleged strong command social alcohol imbibing pressure compounding other adjustment difficulties posed by a romantic breakup and witnessing a close friend “pass away [due to] drinking himself to death…tried CPR on him…” in 2019. The Applicant, also, alleged having been the repeated victim of command based MST for which he made a “closed report” in 2018 which, allegedly, simply, resulted in further harassment.  Unfortunately, no documentation was submitted; and he indicated not having felt comfortable to share it in the many mental health, including SARP related therapy sessions (allegedly, convinced he needed to speak to a “psychologist or psychiatrist”…[vice a] ‘marriage and family’ counselor).  Nonetheless, the VA record does show a “Telementalhealth” consultation mentioning the above MST around the time of his separation. Other data suggest separate PTSD-like symptoms related to his childhood sexual victimization persisting while serving on active duty. Responses to his 19 Oct 2019 Annual PDHA suggest no significant adverse impact associated with lingering, relatively low grade symptoms he would, nonetheless like to speak, e.g., to a Chaplain, consistent with other indicators of  lingering issues associated with above noted childhood sexual trauma rather than more immediate pressing trauma exposures. In conclusion, considering the absence of documentation of documentation of the above noted MST “closed report,” or other disclosure until VA contact, virtually, at separation, weighs against mitigation in the context of the seriousness of the Applicant’s misconduct per Kurta guidance.  Nonetheless, the Applicant’s documented adjustment difficulties and need for numerous mental health related evaluation, indication of residual PTSD-related symptoms incident to his childhood abuse, and therapy in the face of significant adjustment difficulties would appear to warrant consideration of a mitigating-though less than exculpatory, mitigation attributable to a mental health nexus to the misconduct resulting in the Applicant’s discharge.	

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant's performance and ability to conform to the military's standards of conduct and discipline.  In this case, the Board found insufficient evidence in the record for any indications of, or diagnosis for, a Mental Health Diagnosis stemming from MST and PTSD, which would substantiate an exculpatory nexus between the Applicant's misconduct and challenges incurred from a mental health condition.  Additionally, the NDRB is not bound by U.S. Department of Veterans Affairs (VA) decisions, nor do VA decisions have any bearing on the decisions of the NDRB. Decisions reached by the VA to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Department of the Navy. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy and Marine Corps when determining a member's discharge characterization. While the Applicant's service records documented depression in the context of relational problems, the Board found insufficient evidence of MST or PTSD to absolve the Applicant of his misconduct.  

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 was 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.  The totality of the Applicant's misconduct was significant. On 15 December 2019, he engaged in underage drinking and made the decision to get behind the wheel of his vehicle.  In doing so he caused a vehicle accident and property damage, and elected to leave the scene.  He was charged with driving under the influence (DUI) of alcohol with a blood alcohol content of .08.  A mere thirteen days later, on 28 December 2019, the Applicant once again made the decision to engage in underage drinking that resulted in his second DUI.  Here, the Applicant was found asleep in his car at a stop light and arrested by the San Diego Police Department. Outside of these two incidents, he received two 6105 counselings— underage drinking in August 2019 and violating his unit’s leave and liberty policy in March 2018.

The totality of the Applicant's misconduct reflected a gross lack of judgement and was in contrast to the Marine Corps' core values. The Board was incapable of identifying any level of mitigation for his actions and decisions that would be supported by his reported condition. Though the Applicant may feel that a Mental Health Diagnosis was the underlying cause of his misconduct, the record reflected willful misconduct that demonstrated he was unfit for further service. After a thorough review, the NDRB determined that a Mental Health Diagnosis, stemming from MST and PTSD, did not mitigate the Applicant's misconduct. 

Issue 2: Board Issue for a change to the Narrative Reason for Discharge.

The Board found a change to the Narrative Reason for Separation to Secretarial Authority was authorized and warranted.  The NDRB has broad authority to review Department of the Navy discharges.  In accordance with SECNAVMAN 5420.1, ¶ 214 (Review on Motion of the NDRB) the NDRB may initiate a Discharge Review even without an Applicant’s request up until the discharge date exceeds 15 years.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis, and if such a review reveals an impropriety or inequity, relief is in order.  Further, the NDRB does not require an applicant to make an express or implied contention; specifically, under ¶ 211 (Applications) an “applicant is encouraged, but not required, to identify an issue or issues as pertaining to the propriety or the equity of the discharge.” Thus, under ¶ 212 (Procedural Rights of the Applicant) the NDRB will consider that a request for review from an applicant who does not have an Honorable Discharge will be treated as a request for a change to an Honorable Discharge.  Similarly, an applicant may request a specific change in the narrative reason for separation.  If an applicant does not request a specific change in the reason for discharge, the Board will presume that the request for review does not involve a request for change in the reason for discharge.  However, this presumption does not waive “the NDRB’s responsibility to examine the propriety and equity of an applicant’s discharge, the NDRB will change the reason for discharge if such a change is warranted.”  Although highlighting the NDRB’s authority to review and change the narrative reason for discharge, the Board noted that “an applicant may not receive a less favorable discharge than that issued at the time of separation.” ¶ 207 (Objective of Review). 

Consequently, the Board held that it is authorized to make a change to the narrative reason for discharge; reasserted (without necessarily repeating in this section) all the reasons stated above for warranting a change to the characterization of service, and summarized the following considerations concerning the change to the narrative reason for discharge.  Specifically, the Board held that the narrative reason for separation should be Secretarial Authority.  Again reasserting all the reasons stated above that and in accordance with the principles of liberal consideration, the Board held that mitigation should also be given to the narrative reason for discharge.  In other words, the Board found that because the Applicant’s Mental Health partially excused/mitigated the maliciousness/willful nature of the misconduct enough to warrant a change to the narrative reason for which the Applicant was discharged.  In essence, the Board found that the underlying narrative reason for the Applicant’s discharge was the Applicant’s inability for continued naval service.  Therefore, stating in the simplest of terms, the Board held the Applicant’s overall service should be remain Under Honorable Conditions (General) with a narrative reason for discharge of Secretarial Authority.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found the awarded characterization of service shall  UNDER HONORABLE CONDITIONS (GENERAL), the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF1, 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, go to https://www.va.gov/find-locations/?facilityType=health.