DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2565-18 JUL O2 2019 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) SECDEF memo, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD," of 3 Sep 14 (c) PDUSD memo, "Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Clajming PTSD or TBI," of 24 Feb 16 (d) PDUSD 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, of 25 Aug 17 (e) USD memo, "Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations," of 25 Jul 18 Encl: (1) DD Form 149 (NR20180002565) (2) BCNR, Advisory Opinion, dtd 15 October 20 18 (3) Rebuttal to Advisory Opinion, dtd 15 November 20 18 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, requests that the Board for Correction of Naval Records (Board) upgrade his other than honorable (0TH) discharge due to suffering from post-traumatic stress disorder (PTSD), as evidenced by his post-service treatment record. 2. The Board, consisting of , , and reviewed Petitioner's allegations of error and injustice on 30 April 2019, and, pursuant to its regulations, determined that the partial corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of enclosure (I), relevant portions of Petitioner's naval service records, court filings made by Petitioner regarding his requests for relief from the Department of the Navy, and applicable statutes, regulations, and policies, a 15 October 2018 advisory opinion (enclosure (2)), and the 15 November 2018 rebuttal to the AO (enclosure (3)). 3. The Board, having reviewed all the facts ofrecord 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 interest of justice to review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty service on 21 March 1968. Petitioner served without disciplinary incident for five months. On 24 August 1968, Petitioner received nonjudicial punishment (NJP) for a three-day period of unauthorized absence (UA). d. Petitioner was deployed to in September 1968. On 28 November 1969, while in theater, Petitioner received NJP for failure to go to his appointed place of duty. In March 1970, Petitioner returned from . e. On 8 April 1970, Petitioner was apprehended by civilian authorities and charged with mailing a pound of marijuana from a foreign country. Petitioner was released after posting a $5,000 bond. f. On 1 September 1970, Petitioner was convicted at summary court-martial for a 20-day period of UA. The following day, on 2 September 1970, Petitioner began a 173 day period of UA that was terminated by apprehension on 12 March 1971. g. Petitioner requested an other than honorable discharge in lieu of trial by court-martial. Petitioner's request was approved. On 20 March 1971, Petitioner was discharged with an other than honorable characterization of service. h. Petitioner requests an upgrade to his service characterization, and provides supporting evidence confirming his diagnosis of service-connected PTSD. Petitioner also provides numerous exhibits in support of his application, including statements from family members pertaining to Petitioner's change in behavior following his military service. i. As part of the review process, a licensed clinical psychologist reviewed Petitioner's available records and his contentions, and issued an AO that opined that there is evidence to suppmt Petitioner's contention that most, but not all, of his misconduct can be attributed to service-incurred PTSD. Petitioner submitted a response to the AO and stated that the misconduct that took place during and following his return from can be attributed to PTSD, and the misconduct of UA and marijuana use may have occurred to avoid thoughts and reminders of his trauma. Furthermore, the response stated that Petitioner's attempt to mail marijuana was simply an extension of his attempt to self-medicate and treat his symptoms of PTSD. m. The Board, in its review of Petitioner's entire record and application, carefuJly weighed all potentially mitigating factors including Petitioner's PTSD diagnosis, the conclusions of the AO, and Petitioner's contentions in his response to the AO. CONCLUSION: The Board determined that Petitioner's misconduct is mitigated by service-connected PTSD and found that his application should receive liberal consideration. The Board concurred in part with the conclusions of the AO, and took particular note of Petitioner's post-service diagnosis. The Board found that Petitioner's mental health conditions mitigated his actions, but that his mental health conditions did not completely excuse the seriousness of Petitioner's misconduct which included a mailing a controlled substance to the United States from a foreign country. Even in consideration of Petitioner's assertion that the mailing of marijuana and Petitioner's attempts to self-medicate are inextricably linked, the Board found that the severity of the misconduct was not entirely overcome by Petitioner's mental health at the time of his actions. Accordingly, the Board determined that Petitioner is entitled to relief with respect to an upgrade to his discharge characterization from other than honorable to general only. In view of the above, the Board recommends the following corrective action. RECOMMENDATION: That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, to show he was discharged with a general characterization of service. That no further correction action be taken. 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 8 March 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 Regulation, 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. Executive Director