DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8470-18 5370-04 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 PTSD” (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) PDUSD 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” Encl: (1) DD Form 149 (2) Advisory Opinion (AO) of 7 June 19 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps filed enclosure (1) with this Board requesting that his other than honorable (OTH) characterization of service be upgraded to general due to mental health conditions. In light of current guidelines as reflected in references (b) through (d), his case was reconsidered in accordance with Board for Correction of Naval Records procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). Additionally, he requested that his Social Security Number (SSN) on his Report of Separation from Active Duty (DD Form 214) ending in be changed to read . Enclosures (1) and (2). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 24 February 2020, 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 the enclosures, relevant portions of naval records, as well as applicable statutes, regulations, and policies, post-service diagnosis, and enclosure (2), an advisory opinion provided by a Navy mental health professional, which was previously provided to the Petitioner. 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. Petitioner enlisted in the Marine Corps and began a period of active duty on 25 June 1976. During his service, he received nonjudicial punishment (NJP) and was convicted by summary court-martial for periods of unauthorized absence (UA) totaling 27 days. On 17 January 1978, he submitted a written request for an other than honorable (OTH) discharge in order to avoid trial by court-martial for 101 days of UA. Prior to submitting this request for discharge, he conferred with a military lawyer, was advised of his rights, and warned of the probable adverse consequences of accepting such a discharge. Subsequently, his request for discharge was granted and on 8 February 1978, he received an OTH discharge in lieu of trial by court-martial. As a result of this action, he was spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. c. On 17 November 2004, the Board for Correction of Naval Records denied Petitioner’s request to upgrade the characterization of his service. Once again, the Board concluded that the factors of his case were not sufficient to warrant upgrading the characterization of his service given his misconduct, which resulted in NJP, SCM conviction, the referral of charges to a court-martial, and his approved request for discharge. d. As new evidence, Petitioner submitted a mental health diagnoses for Attention Deficit Hyperactivity Disorder (ADHD), a psychological evaluation listing diagnoses of pain disorder associated with both psychological factors and a general medical condition, Bipolar I disorder, and substance abuse (analgesic and PCP) by history. He also included a statement that he has ADHD, PTSD, and Bi-Polar with mood disorders. He stated that he is incorrigible due to his mental illnesses. He asserts that his disabilities have been with him his whole life. The Board determined that the evidence and statement he provided, even though not previously considered by the Board, were insufficient to establish the existence of probable material error or injustice and thus not material. With regard to his request to have his SSN changed on his DD Form 214, Petitioner submitted a copy of his social security card and Medicare card both with his SSN ending in vice . e. Enclosure (2), states that prior to entering the Marines, Petitioner was involved with civilian police for carrying lock picking tools, fighting with his brother, and engaging in the following activities on his motorcycle: reckless driving, speeding, stopping suddenly without signaling, cutting in front of a car without signaling, failing to stop at a signal, and driving an unregistered vehicle. In his discharge request, he stated that he did not like his job, felt that he could better assist his mother if he were out of the Marines, and under no circumstances did he want to return to duty to finish his enlistment. Petitioner has several mental health diagnoses. He claimed that he has been experiencing these mental health conditions throughout his life; there is no information from his clinical providers providing an alternate timeline. Petitioner did have a history of engaging in thrill-seeking behavior prior to entering the Marines, which could have been indicative of unrecognized symptoms of bipolar I disorder. However, it is difficult to attribute his misconduct to symptoms of a mental health concern. UA can be attributed to many factors. Additional records, such as post-service treatment records describing the specific relationship between Petitioner’s mental health symptoms and his military misconduct, are required to render an alternate opinion. Based on the preponderance of the evidence, there is insufficient evidence to attribute Petitioner’s misconduct to his mental health conditions. f. Petitioner’s request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the “Clarifying Guidance to Military Discharge Review Board 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” memorandum of 25 August 2017. CONCLUSION Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (d). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. In this regard, the Board noted Petitioner’s misconduct, which resulted in NJP, a SCM conviction for periods of UA, the referral of charges to a court-martial for a lengthy period of UA, and his request for discharge. After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, Petitioner’s request to have his discharge changed to honorable was denied. With regard to Petitioner’s SSN shown on his DD Form 214, the Board voted to change the last digit from to , making the last four digits of his SSN vice . In view of the foregoing, the Board finds the existence of an injustice warranting the following partial corrective action. RECOMMENDATION Petitioner’s naval record is corrected to show that on 8 February 1978, his Social Security Number ended in . Petitioner be issued a DD Form 215, Correction to DD Form 214 Certificate of Release or Discharge from Active Duty. No further relief be granted. A copy of this report of proceedings be filed in Petitioner’s naval record. Upon request, the VA is informed that Petitioner’s application was received by the Board on 10 October 2018. 4. It is certified that 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 Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)), 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. 3/27/2020