DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10678-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo of 3 Sep 14 “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder” (c) PDUSD Memo of 24 Feb 16 “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) USD Memo of 25 Aug 17 “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” (e) USECDEF Memo of 25 Jul 2018 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 with attachments (2) Case Summary (3) Mental Health Condition Advisory Opinion, MLCS/Docket No: 20180010678 of 12 Aug 2019 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with a request to upgrade his characterization of service. Enclosures (1) through (3) apply. 2. The Board, consisting of , reviewed Petitioner’s petition containing certain allegations of error and injustice on 9 January 2020, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of his naval service records and his medical records, applicable statutes, regulations, policies, and the 12 August 2019 advisory opinion from a Navy mental health provider. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active service on 8 April 2002. On 11 January 2003, the Petitioner went to non-judicial punishment (NJP) for assault. On 17 May 2004, the Petitioner went to a second NJP for the wrongful use of marijuana. d. On 26 May 2004, the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to drug abuse. He elected to waive his right to consult with counsel and to present his case to an administrative separation board. Ultimately, on 17 August 2004, Petitioner was discharged from the Marine Corps with an Other Than Honorable (OTH) characterization of service, with “Misconduct, specifically due to drug abuse” as the narrative reason for separation on his DD Form 214. e. Petitioner’s final overall proficiency and conduct trait averages assigned on his period evaluations during his enlistment were 3.66 and 3.33, respectively. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 3.0 in proficiency (proficient and industrious performance of duty), and 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. f. Petitioner contended that he was developed post-traumatic stress disorder (PTSD) during his 2003 Iraq deployment resulting in his self-medicating with marijuana. Petitioner further argued that the PTSD was a causative factor for the behavior underlying his separation and OTH discharge. g. As part of the review process, a Navy Medical Officer (NMO), who is also a licensed clinical psychologist, reviewed Petitioner’s contentions and the available records, and issued the 12 August 2019 advisory opinion. The NMO observed that the Petitioner submitted several clinical records with PTSD diagnoses. Subsequently, the NMO determined that the Petitioner has service-connected PTSD. The NMO determined that Petitioner’s in-service misconduct for assault and marijuana use potentially could be considered symptomatic of PTSD and concluded by opining that there is some evidence to attribute the Petitioner’s in-service misconduct to service-connected PTSD. CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of the documented PTSD determinations, the Board concludes that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in reaching fair and consistent results in these difficult cases.” The memorandum describes the difficulty veterans face on “upgrading their discharges based on claims of previously unrecognized” mental health conditions. The memorandum further explains that because mental health conditions were not previously recognized as a diagnosis at the time of service for many veterans, and diagnoses were often not made until after service was completed, veterans were constrained in their arguments that mental health conditions should be considered in mitigation for misconduct committed, or were unable to establish a nexus between a mental health condition and the misconduct underlying their discharge. Similarly, the intent of the Under Secretary of Defense Memorandum (reference (e)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. In keeping with the letter and spirit of the recent policy guidance, theBoard felt that Petitioner’s diagnosed PTSD and any related mental health issues should mitigate the misconduct used to characterize his discharge. TheBoard also concluded that the Petitioner’s PTSD-related conditions as a possible causative factor in the misconduct contributing to his discharge characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service with an OTH, and that a discharge upgrade is appropriate at this time. The Board unequivocally concluded that a GEN characterization was appropriate. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the reentry/reenlistment code be changed to “RE-1J.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 19 November 2018. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.