ex- Pvt, 

Current Discharge and Applicant’s Request

Application Received: 20240125
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: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	

Period of Service Under Review:
Date of Enlistment:  20050920	Age at Enlistment:  18
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20090106	Highest Rank/Rate:  Cpl
Length of Service:  03  Year(s)  03  Month(s)  17  Day(s)
Education Level:  12	AFQT:  58
Deployment/Operation: IRAQI FREEDOM

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

Awards and Decorations (per DD 214):	Rifle  (x2) NMCAM OSR ICM (w/1 Star) GWOTSM NDSM CoA

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  20080908 - 20081006, 29 days

SPCM:    CIVIL ARREST:   CC:   

NJP:  3

- 20080820:	Article 86 (Absence without leave) (x6)
	Awarded: RIR FOP  RESTR EPD  Suspended: FOP

- 20080826:	Article 86 (Absence without leave) (x2)
	Awarded: RIR RESTR FOP  Suspended:   

- 20080826:	Article 86 (Absence without leave) (x2)
	Article 92 (Failure to obey order or regulation)
	Article 107 (False official statements; false swearing)
	Awarded: RIR RESTR FOP  Suspended:  FOP

SCM:  1

- 20081022: Article 134 (General Article
	Specification 1: In that [Applicant], USMC, on active duty, having been restricted to the limits of barracks room by a person authorized to do so, did, at Okinawa, Japan, on or about 29 August 2008, break said restriction. 

Specification 2: In that [Applicant] USMC, on active duty, having been restricted to the limits of barracks room by a person authorized to do so, did, at Okinawa, Japan, on or about 6 September 2008, break said restriction.
	Sentence: RESTR for 30 days CONF for 15 days
	CA: Approved and ordered executed. 

Retention Warning Counseling:  3

- 20080821:	For violation of articles 86 (x6), resulting in NJP.

- 20080827:	For violation of article 86 (x2), resulting in NJP.

- 20081126:	For violation of articles 86 (x2), 92 and 107, resulting in NJP.

Types of Documents Submitted/reviewed

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

Additional Statements

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

	Expert:  			Character:    

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

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 6 June 2007 until 26 November 2013. 

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant seeks clemency based on the relevant standards of equity related to the contention that his mental illness was the underlying cause of and mitigating factor to his misconduct.
2.	The Applicant’s discharge characterization is inequitable because his mental illness made him incapable of serving satisfactorily and resulted in the misconduct for which he was discharged.
3.	The Applicant’s discharge is inequitable, given that, under current screening standards, the Applicant’s PTSD would have been identified sooner, and likely treated, preventing the misconduct that led to his discharge.
4.	The Applicant’s discharge characterization and narrative are inequitable, as his overall quality of service shows that his misconduct was not representative of his service and only caused by his PTSD.

Discussion

Date:  20241202		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 deployment.  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 violation of articles 86 (x6), resulting in NJP.
- For violation of article 86 (x2), resulting in NJP.
- For violation of articles 86 (x2), 92 and 107, resulting in NJP.

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 86 (Absence without leave)
Article 92 (Failure to obey order or regulation)
Article 107 (False official statements; false swearing)

  for  of the UCMJ:  
Article 134 (General article)

Issues 1-4: The Applicant seeks clemency based on the relevant standards of equity related to the contention that his mental illness was the underlying cause of and mitigating factor to his misconduct; contends his discharge characterization is inequitable because his mental illness made him incapable of serving satisfactorily and resulted in the misconduct for which he was discharged; contends because under current screening standards, the Applicant’s PTSD would have been identified sooner, and likely treated, preventing the misconduct that led to his discharge; and further contends because his overall quality of service shows that his misconduct was not representative of his service and only caused by his PTSD.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  

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

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

In this case, the Board found that: a) the Applicant did have a condition/experience that may excuse or mitigate the discharge; b) the condition existed during military service; c) the condition/experience mitigated the underlying basis/misconduct for the discharge; but that d) the condition/experience did not 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 (PTSD)	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	Yes (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?	Yes	
4.	Medical Board Member comments:	Reviewed the Applicant’s medical treatment records, military service records, and all applicant-provided materials.

The combination of the Applicant's medical treatment files and submitted materials lends to the following conclusions: there is evidence in the medical record that the applicant was diagnosed with PTSD symptoms while on active duty.  It is possible that PTSD symptoms may have contributed to the applicant’s behavior and conduct and may have had some influence in the applicant’s misconduct episodes.

Based on this information, I do find a mitigating nexus between the Applicant’s misconduct and his mental health.	

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

In accordance with the above, 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.  In making its determination, the Board considered the Applicant’s conduct forms the primary basis for consideration.  The Applicant served three years, three months, and 17 days of a four year enlistment contract.  During his service he completed a 13 month deployment. Additionally, the Applicant had overall proficiency and conduct scores of 4.2 and 4.2.  He was awarded a Navy and Marine Corps Achievement Medal, an Overseas Service Ribbon, an Iraqi Campaign Medal with 1 star, a Global War on Terrorism Service Medal, a National Defense Service Medal, and a Certificate of Appreciation.   The Applicant’s in-service conduct included three Retention Warnings which resulted in three nonjudicial punishments for violation of Articles 86, 92 and 107 of the UCMJ and 1 Summary Court Martial for violation of Article 134 (2 specifications for breaking restriction) of the UCMJ; this was a willful failure to meet the requirements of his contract honorably.  

However, the Applicant contends his Mental Health Diagnosis was a mitigating factor in his misconduct and that current screening standards would have caught his diagnosis, resulted in treatment, and prevented his misconduct.  The Applicant’s official military service record documents PTSD symptoms while on active duty.  While this diagnosis supports the Applicant’s contention that he had a mitigating Mental Health condition, the in-service medical evaluator concluded that the Applicant’s PTSD symptoms had resolved.  Therefore, the Board found that the mental health diagnosis did not fully exonerate the Applicant’s choices or account for the persistent nature of the misconduct.  Thus, full relief to Honorable was not granted as the Board found that the Applicant’s mental health condition did not rise to such an incapacitating level as to exonerate him of all misconduct.  

Nonetheless, the Board found that the assignment of an UOTH characterization was unduly harsh in this case.  An UOTH is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a Marine or Sailor, which encompasses misconduct such as, but are not limited to: the use of force or violence to produce serious bodily injury or death, abuse of special positions of trust, disregard of customary senior-subordinate relationships, acts or omissions endangering the security of the Marine Corps/Navy, deliberate acts or omissions seriously endangering the health and safety of others.  Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented mental health warranted additional consideration in the determination of overall characterization of service.  

Further, the Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct; the nexus between his pattern of misconduct and his mental/emotional stability; and the severity of his conduct in relation to his discharge characterization.  Additionally, clemency is an act of leniency that reduces the severity of the punishment imposed.  Additionally, clemency is a general term for the administrative review or action, other than the correction of legal error, which results in mitigation, remission, or suspension of the whole or any part of the unexecuted portion of a court-martial sentence, restoration to duty, the voluntary retention on active duty beyond the obligated term of enlistment, or reenlistment.  Clemency also includes substitution for good cause an administrative discharge for an executed punitive discharge or dismissal in select cases.  In consideration for all these factors, to include the relevant standards of equity and weighing the severity of the misconduct in relation to the assigned characterization/narrative for discharge, the Board determined that the unique circumstances of this case did not warrant relief primarily based on clemency.  Consequently, the Board found a change in the characterization of service to General (Under Honorable Conditions) was appropriate.  

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  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKA1, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

Record of Vote

Board Members	Characterization	Narrative Reason	Separation Code	Reentry Code	

Presiding Officer	GENERAL (UNDER HONORABLE CONDITIONS)				

	GENERAL (UNDER HONORABLE CONDITIONS)				

Recorder	GENERAL (UNDER HONORABLE CONDITIONS)				

					

Recorder’s Signature:  _____________________________________________

 Presiding Officer’s Signature:  _______________________________________

Director’s Review:  _______________________________________________

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.