, ex-LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20231108
Characterization of Service Received:    
Narrative Reason for Discharge:    MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge:    MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] 

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:	 20090303 - 20131106  
				 20131107 - 20171018  
				 20171019 - 20211118  

Period of Service Under Review:
Date of Enlistment:  20211119	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20230131	Highest Rank/Rate:  GySgt
Length of Service:  1  Year(s)  02  Month(s)  13  Day(s)
Education Level:  12	AFQT:  68
Deployment/Operation: 

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle (3) Pistol (3) NMCAM(3) MUC(2) GCM(4) NDSM IRCM GWOTEM(2) GWOTSM OVSM SSDR(5) CoC MM(2) LoA(4)

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

SCM:    SPCM:    CIVIL ARREST:   CC:     NJP:  NONE

Retention Warning Counseling:  

- 20220418:	For violation of Art 86 and 92 (4 specifications). Between 12Aug2021 and 5Dec2021 was absent from place of duty at MCAS, and 92 for sexually harassing LTjg, LCpl, LCpl, and harassing Cpl.

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 6210.6, 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).

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92.  

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant contends that his Administrative Separation Board was improperly convened and was comprised of ineligible members and erred in that it made findings on issues that were not part of the administrative separation notice.
2.	The Applicant contends that he did not engage in the alleged misconduct which served as the catalyst for discharge.
3.	The Applicants contends that his post-traumatic stress disorder (PTSD) and mental health were mitigating factors in his discharge. 
4.	The Applicant states that his overall service and post-discharge conduct are deserving of an Honorable characterization of service. 

Discussion

Date:  20240207		Location:  WASHINGTON D.C.	Representation:  

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

As a result of the Applicant’s claim 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 May to October 2020 in support of Operation.  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:

:  The Applicant contends that his Administrative Separation Board was improperly convened and was comprised of ineligible members and erred in that it made findings on issues that were not part of the administrative separation notice.

The Applicant contends that his Administrative Separation Board (ASB) was improper as it was comprised of members that were not on the appointment memorandum and there is no written record of the replacement of board members.  Further, the Applicant contends that there was no excusal for any of the members by the Convening Authority on the original appointment memorandum.  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.  There is insufficient evidence in the record, nor has the Applicant produced any evidence, to support the contention that the members of the Applicant’s ASB were not appropriately appointed.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Further contention is raised by the Applicant that the ASB concluded that the Applicant should be discharged for findings that were different from the charges noted as the basis for separation.  The Applicant was charged with violation of Article 92 of the UCMJ for sexual harassment of three service members and violation of Article 92 of the UCMJ for the harassment of a fourth service member.  The ASB concluded that the Applicant did not commit sexual harassment of three of the members and that he committed harassment of those individuals.  The Applicant contends that this is improper as harassment and sexual harassment are completely different basis for separation with different definition and elements.  However, the NDRB finds that the Applicant was charged with the harassment of at least one of those members and the ASB found the Applicant guilty of harassment of that member.  The Applicant was able to appropriately defend himself against the allegations of harassment.  The NDRB finds that while the ASB found the Applicant not guilty of sexual harassment, that the Applicant was clearly conducting himself in a manner that was improper for a senior enlisted member of the Marine Corps and was contrary to good order and discipline. As such, the NDRB did not discern an impropriety in the conduct of the Applicant’s ASB.      

Issues 2-4:  The Applicant contends that he did not engage in the alleged misconduct which served as the catalyst for discharge.  Further, the Applicants contends that his PTSD and mental health were mitigating factors in his discharge.  Additionally, the Applicant states that his overall service and post-discharge conduct are deserving of an Honorable characterization of service. 
 
Because the Applicant claimed mental health was a factor in his discharge, the NDRB reviewed the Applicant’s case in accordance with 10 U.S.C. § 1553, and pursuant to the Kurta Memo and other applicable regulations and guidance, including the Wilkie Memo.  Under the Kurta Memo, “[m]ental health conditions, including PTSD; sexual assault; and sexual harassment inherently affect one’s behaviors and choices causing veterans to think and behave differently than might otherwise be expected.”  Although, “[l]iberal consideration does not mandate an upgrade, [r]elief may be appropriate … for minor misconduct commonly associated with mental health conditions … and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.”  Additionally, “substance seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration.”  However, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”  Therefore, “Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.” See USD (P&R) Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” 25 August 2017 (“Kurta Memo”).

The review of discharges pursuant to the Kurta Memo and its other applicable regulations/guidance generally involves four questions: a) Did the veteran have a condition or experience that may excuse or mitigate the discharge; b) Did that condition exist/experience occur during military service; c) Does that condition or experience actually excuse or mitigate the discharge; and d) Does that condition or experience outweigh the discharge?  

In this case, the NDRB found that: a) the Applicant did have a condition/experience that may excuse or mitigate the discharge; b) the condition existed during military service; c) the condition/experience mitigated the underlying basis/misconduct for the discharge; and d) the condition/experience outweighed the Applicant’s assigned Discharge Characterization.  

MEDICAL BOARD MEMBER OPINION
1.	Does the available record reasonably support a DSM mental/behavioral health condition, PTSD, TBI, or Sexual Trauma/Abuse/IPV existed at the time of the Applicant’s military service?	Yes (Except clinical status less certain when designated as “RULE OUT”)
         USMC:
ALCOHOL USE DISORDER, MODERATE.
“RULE OUT” UNSPECIFIED DEPRESSION.
“RULE OUT” UNSPECIFIED ANXIETY.
PSYCHOSOCIAL STRESSORS: PRIMARY SUPPORT SYSTEM
         ANXIETY DISORDER, UNSPECIFIED
         PTSD originally of Prior to Service Origin never formally diagnosed but believed by the Applicant and possibility suggested by history of EPTS ‘shooting’ incident exposure and subsequent anxiety as well as exposure to Operation Inherent Resolve claimed by Applicant (both in PAH and historically listed in questionnaire) but not found to have been clinically verified by any medical or mental health professional. 
        VA:  No records included
	
2.	A.	Were these conditions present at time of misconduct?	Yes (Except less certain if prefixed by “RULE OUT” and, in the case of PTSD, there is no indication diagnosis was ever verified by a mental health professional).	
	B.	Were these conditions mitigating for the misconduct?	Yes, with limitation noted above	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Uncertain due to lack of details on discharge physical exam	
4.	Medical Board Member comments:	Against a formative background of having been the product of a family with a number of siblings and a military tradition (including his maternal grandfather having served as a Marine, including having participated in the WWII invasion of Iwo Jima), and strict family values placing a high premium on discipline and achievement, the Applicant developed a communication interaction emphasizing directness and nominal impatience which occasionally led to misunderstandings with others.  A reported exposure to a “shooting” incident followed by anxiety symptoms prior to enlistment is also noted.  Following high school graduation, he attended college which he found unfulfilling, leading him to decide to enlist in the USMC.  Subsequently, he served well through two enlistments only to encounter difficulties in his third enlistment partly related to his penchant for directness as he advanced in rank which, arguably contributed to creating an atmosphere of tension and impatience within his marriage (now divorced) with those who, later, filed charges against him.  At his PAH, he tended to minimize the role of alcohol (though acknowledged a history of alcoholic blackouts) and indicated he felt he had PTSD but appeared to have a naïve concept of the diagnosis that does not appear as a formal clinical diagnosis by a qualified mental health professional in the available Service Treatment Record.  No VA records were available.  Nonetheless, the Applicant would appear to have manifested a prior to enlistment vulnerability to behavioral traits predisposing him to social maladjustment which would appear to have, also, predisposed him to the diagnoses listed above and social misunderstandings for which mental health treatment was incompletely successful causing him to rely on alcohol to manage and the behavior resulting in his OTH discharge.  Moreover, while the Applicant’s intermittent mention of “PTSD” over time combined with his EPTS history of trauma exposure with subsequent anxiety as well as stressors reportedly encountered during participation in Operation and the seemingly missing evidence of medical reviewer attention to the Applicant’s repeated conviction he had “PTSD” in medical questionnaires, suggests additional liberal consideration in the spirit of Kurta, et. al. memos.  Accordingly, additional consideration as a matter of fairness and equity is warranted favoring an upgrade.	

When reviewing discharges, the NDRB considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. 

In this case, the NDRB finds that 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.  In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included multiple violations of Article 92 of the UCMJ for the harassment of four service members; this was a willful failure to meet the requirements of his contract honorably.  However, the Applicant contends his mental health was a mitigating factor in his misconduct.  The NDRB requested the Applicant’s medical treatment records for both in-service and post-service medical treatment from the U.S. Department of Veterans Affairs (VA) and conducted a thorough review.  The NDRB Medical Officer did find multiple mental health diagnoses for the Applicant in his medical records to support his claim.  The NDRB Medical Officer opined that the culmination of the Applicant’s service history, mental health, and alcohol abuse led to circumstances where the Applicant was frequently misunderstood and that the potential underlying mental health aspects of this case warrant the application of liberal consideration. 
 
Further, in making its determination, the NDRB considered the totality of the Applicant’s service both his misconduct and also his overall service which included his advancement to Gunnery Sergeant, his multiple deployments, and a career that he provided substantial value to the Marine Corps as a tiltrotor mechanic.  The Applicant has since completed an Associate’s degree in Aviation Management and is continuing his education toward a Bachelor’s degree in Project Management.  Further, the Applicant is excelling in the aerospace industry as a Maintenance Controller.  The NDRB considered the Applicant’s overall capacity to serve; his entire military performance and conduct; his mental health diagnosis; the nexus between his conduct and his mental/emotional stability; and the severity of his conduct in relation to his discharge characterization.  Consequently, the NDRB found a change in characterization of service to General (Under Honorable Conditions) was appropriate.  Partial relief granted.  

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the NDRB found .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT (SERIOUS OFFENSE) with a corresponding separation code of GKQ1, 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.