ex- LCpl, 

Current Discharge and Applicant’s Request

Application Received: 20230516
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
Authority for Discharge:   MARCORSEPMAN 6210 

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:  20190909	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20211223	Highest Rank/Rate:  LCpl
Length of Service:  03  Year(s)  06  Month(s)  08  Day(s)
Education Level:  12	AFQT:  83
Deployment/Operation: 

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

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

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

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

Retention Warning Counseling:  NONE

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:	

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.

D.  Secretary of Health and Human Services memo “Determination that a Public Health Emergency Exists” of 31 January 2020

E.  Secretary of Defense memo “Message to the Force – COVID-19 Response” of 27 March 2020.

F.  Secretary of Defense memo “Guidance for Commanders on Risk-Based Changing of Health Protection Condition Levels During the Coronavirus Disease 2019 Pandemic” of 19 May 2020.

G.  Secretary of Health and Human Services & Secretary of Defense memo “Statement from HHS and DOD on FDA Use Authorization of a COVID-19 Vaccine Candidate” of 11 December 2020.

H.  Secretary of Defense memo “Use of Masks and Other Public Health Measures” of 4 February 2021

I.  Secretary of Defense memo “Message to the Force” of 9 August 2021.

J.  Secretary of Defense memo “Mandatory Coronavirus Disease 2019 Vaccination Department of Defense Service Members” of 24 August 2021.

K.  MARADMIN 612/21 “Supplemental Guidance (2) to Mandatory COVID-19 Vaccination of Marine Corps Active Reserve Components” of 21 October 2021.

L.  Secretary of Defense memo “Coronavirus Disease 2019 Vaccination for Members of the National Guard and the Ready Reserve” of 30 November 2021.

M.  NAVADMIN 283/21 “CCDA Execution Guidance to Commanders” of 15 December 2021.

N.  Secretary of Defense memo “Rescission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces” of 10 January 2023.

O.  ALNAV 009/23 “Rescission of COVID-19 Vaccination Requirement for Members of the Armed Forces” of 23 January 2023.

P.  Secretary of Health and Human Services memo “HHS Secretary Xavier Becerra Statement of End of the COVID-19 Public Health Emergency” of 11 May 2023.

Q.  Assistant Secretary of the Navy (M&RA) memo “Correction of Naval Records for Former Members of the Department of the Navy Following Recession of the August 24, 2021, and November 30, 2021, Corona Virus Disease 2019 Vaccination Requirement for Former Members of the Armed Forces” of 6 September 2023.

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

Applicant’s Issues

1.	The Applicant contends their discharge is inequitable because the COVID-19 vaccination is no longer mandated.
Discussion

Date:  20240807		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.

The Applicant’s record of service included no retention warning counseling and no misconduct resulting in nonjudicial punishment or court-martial.

The Applicant’s record of service included no accommodation/exemption request to the COVID-19 vaccination.

:  The Applicant contends their discharge is inequitable because the COVID-19 vaccination is no longer mandated.

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.

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 reviewing discharges of former Department of the Navy members who were separated for refusal to receive the COVID-19 vaccination, the NDRB considers the Assistant Secretary of the Navy (Manpower & Reserve Affairs) memorandum of 6 September 2023 [hereinafter “Parker Memorandum”].  According to the Parker Memorandum: 

“On January 10, 2023, the Secretary of Defense rescinded the DoD COVID-19 vaccination policy pursuant to section 525 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023.  The Secretary’s guidance further directed that former Service members may individually petition their Military Department’s Review Boards to request a correction to their personnel records, including records regarding characterization of their discharge.  Accordingly, the Review Boards should generally grant a discharge upgrade request from a former Service member when:

•	The Service member was involuntarily separated;
•	The entry within the [military or naval record] would prevent that Service member from rejoining the military without a waiver should the member desire to do so; and,
•	The following three conditions are met:
(1) The involuntary separation was based solely on a refusal to receive the COVID-19 vaccination; 
(2) The Service member formally sought an exemption or accommodation on administrative, religious, or medical grounds in accordance with Service regulation or policies prior to or contemporaneous with the official initiation of the action; and, 
(3) There are no aggravating factors in the member’s record, such as misconduct.

Additionally, the Parker Memorandum provides, where there are multiple reasons for involuntary separation, the NDRB applies existing policy that requires the former Service member to establish by a preponderance of the evidence that the discharge was either improper or inequitable to warrant relief.  Further, as required by the Parker Memorandum all applications are reviewed on a case-by-case basis. The Parker Memorandum states that it does not address situations where the NDRB determines that the COVID-19 vaccination requirements (or related policies) as applied under the circumstances of a particular case resulted in an impropriety or inequity.  In those instances, the Parker Memorandum requires the NDRB to fashion the remedy they find necessary and appropriate within applicable legal limits.

In this case, the Applicant’s record shows: 1) the Applicant was involuntary separated based solely on a refusal to receive the COVID-19 vaccination; 2) there was insufficient evidence the Applicant sought an exemption/accommodation on administrative, religious, or medical grounds; but 3) the Applicant had no other negative aspects of performance or conduct documented in their service record.  In accordance with the Parker Memorandum and the previously issued Marine and Navy Administrative Notices concerning COVID-19 Vaccination, the Board noted the totality of the Applicant’s overall performance and conduct (notwithstanding the Applicant’s vaccination refusal) and therefore determined their service meets the standards for characterization as Honorable as detailed below.  Regarding the narrative reason for discharge, the Board recognized the Applicant’s refusal to obey a lawful order, but also considered the recession of the COVID-19 vaccination requirements and the singular nature of the misconduct against the Applicant’s overall performance and conduct.  

The Applicant provided a statement to the Board acknowledging his mistake in refusing to obey an order and took full responsibility for his actions.  Service records detailed the Applicant served 3 years, 6 months, and 8 days of his contract; earned 1 Rifle badge, National Defense Service Medal, Global War on Terror Service Medal; and maintained in-service Proficiency and Conduct Marks of 4.2 and 4.2.  The Board found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  Outside of his refusal to take the COVID vaccine the Board found insufficient evidence of any other negative aspects of the member’s conduct or performance of duty to outweigh the positive aspects of the member’s service record.  While the Board considered his refusal to obey a lawful order a negative aspect within his military career, it did not rise to constitute a significant departure of military conduct in the context of his entire time in-service.  Moreover, the Board determined his conduct did not warrant a General (Under Honorable Conditions) characterization of service, and the subsequent recession of the COVID-19 vaccination requirements represents a change in policies and procedures currently applicable to Service members.  As a result of the change of policy the Board has substantial doubt that the Applicant would have received the same narrative reason for separation if current policies and procedures had been available at the time of his discharge. Therefore, and after an exhaustive review of this case, the Board discerned no impropriety in the discharge action but did discern an inequity in the Applicant’s characterization of the service and narrative reason for separation.  Thus, by unanimous decision, the Board found an upgrade warranted.  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 Board found the awarded characterization of service shall change to HONORABLE, the narrative reason for separation shall change to SECRETARIAL AUTHORITY with a corresponding separation code of JFF1, and the reentry code shall change to RE-1A.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.

Record of Vote

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.