DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4489-18 JUL 24 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 September 2014 (c) PDUSD memo, "Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI," of 24 February 2016 (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 August 2017 Encl: (l) DD Form 149 with attachments (2) Advisory Opinion, MLCS Docket No: NR20180004489 of 26 Nov 18 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted Marine, filed enclosure (1), requesting his Certificate of Release or Discharge from Active Duty (DD Form 214) be changed by upgrading his characterization of service. 2. The Board, consisting of , and , reviewed Petitioner's allegations of error and injustice on 9 May 2019 and pursuant to its regulations, determined that the coJTective 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 Petitioner's naval service records, and applicable statutes, regulations, and policies, as well as the enclosed 26 November 2018 advisory opinion (AO) from a qualified 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 regulation 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 Navy and began a period of active service on 18 August 1968. He participated in counter-insurgency operations in the from June 1968 to July 1969. He served without disciplinary incident until 26 December 1968, when he received nonjudicial punishment (NJP) for disrespectful language and rust on his rifle. On 3 September 1969, he received a second NJP for a three-day unauthorized absence (UA). On 16 December 1969, he received a third NJP for failure to go to his appointed place of duty on three separate occasions. On 17 March 1970, he was convicted by summary court-martial (SCM) of disrespectful language and disobeying an order. On 20 April 1970, he received a fourth NJP for using a fake identification card and an unauthorized liberty pass, and a single-day UA. On 7 May 1970, he was convicted by special court-martial (SPCM) for assaulting a sergeant by hitting the sergeant in the head and chest with his fists. On 15 June 1970, he was convicted by SCM for two periods of UA totaling ten days and failure to go to his appointed place of duty. On 28 August 1970, he was convicted by SPCM for assaulting a sergeant by hitting the sergeant in the head and chest with his fists. d. On 11 April 1973, after four UAs occurring between January 1971 and 1 March 1973 and totaling over six months, Petitioner submitted a request for separation to avoid trial by court­martial. Before submitting this request, Petitioner conferred with a qualified military lawyer, at which time he was advised of his rights and warned of the probable adverse consequences of accepting such a discharge. His request was granted, and his commanding officer was directed to discharge him for the good of the service with an other than honorable (0TH) characterization of service. On 29 April 1973, Petitioner was discharged. e. Petitioner contends he did not deserve an 0TH characterization because, since his time in , he has experienced depression, anger, difficulties sleeping due to nightmares, and waking from sleep sweating and disoriented. He further contends he was always "on guard, jumpy, and easily startled." He tried to stay away from others and had no interest in the activities he previously enjoyed. Petitioner also contends he had trouble concentrating because he was "repeatedly reliving all of the death and destruction from being in-country." f. Petitioner submitted a letter from the readjustment counseling therapist who has been treating him for post-traumatic stress disorder (PTSD) since approximately March 2015. The therapist stated that Petitioner continues to re-experience traumatic events from his deployments with "concomitant hyper arousal and social avoidance." Additionally, the therapist and Petitioner have developed a treatment plan focused on reducing the PTSD symptoms Petitioner has been experiencing since his first week in . g. As part of the Board's review, a qualified mental health provider reviewed Petitioner's assertions and available records, and provided a favorable AO dated 26 November 2018. The AO concluded that Petitioner's post-service PTSD can be attributed to his military service but noted that, because Petitioner did not provide any post-service treatment records, it is difficult to render an opinion regarding his misconduct. The AO explains that Petitioner's UAs and failures to be at his appointed place of duty "could be conceptualized as avoidance symptoms of PTSD." However, the AO concluded that the assaults, disrespectful language, and fake identification and liberty cards cannot be attributed to PTSD. The AO was provided to the Petitioner on 28 November 2018, and he was given 30 days in which to submit a response. When he did not provide a response, his case was submitted to the Board for consideration. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner's request warrants relief. The Board reviewed his application under the guidance provided in references (b) through (d). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The purpose of the Secretary of Defense memorandum is to ease the process for Veterans seeking redress and assist the Boards 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, since 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. The Board, relying upon Petitioner's PTSD diagnosis-which, per enclosure (2), can be attributed to his military service-determined that there was sufficient evidence to support a finding that hls PTSD mitigates his misconduct. The Board determined that the relief requested is warranted. Additionally, in the interest of justice, the Board concluded that Petitioner should receive additional relief in the form of corresponding changes to his narrative reason for separation, separation code, and separation authority. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) indicating his characterization of service as "general, under honorable conditions," his narrative reason for separation as "secretarial authority," the separation code as "JFF," and the separation authority as "MILPERSMAN 1910-164." No further changes be made to Petitioner's record. A copy of this report of proceedings be filed in Petitioner's naval record. Upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 16 May 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. Executive Director