DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9031-18 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, “Supplemental Guidance to MilitaryBoards 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: (1) DD Form 149 with attachments (2) Advisory Opinion, MLCS Docket No: NR20180009031 of 21 Jun 19 (3) letter of 29 Jul 19 (4) Updated Advisory Opinion, MLCS Docket No: NR20180009031 of 2 Aug 19 1. Pursuant to reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board grant him clemency in the form of changes to his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 6 February 2020, and, pursuant to its regulations, determined 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, applicable statutes, regulations, and policies, and the enclosed advisory opinions (AO) from a mental health provider and rebuttal response submitted by the Petitioner through counsel. 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 interest of justice to review the application on its merits. c. Petitioner enlisted and began a period of active service in the Marine Corps on 26 July 1995. He received non-judicial punishment (NJP) on 22 December 1995 for violating an order by chewing tobacco and spitting on the carpet in the barracks. On 31 July 1996, Petitioner was counseled because he was not recommended for promotion to lance corporal because of proficiency, conduct, and an over-indulgence in alcohol. On 12 June 1997, he was counseled for being eligible but not recommended for promotion due to poor financial management. On 3 September 1997, he was counseled for failure to exhibit the adequate and proper amount of maturity, bearing, self-control, self-discipline, and common sense of a Marine of his rank and experience. On 11 September 1997, he was again counseled because he was not recommended for promotion because of his continuous lack of maturity demonstrated by his lack of respect for noncommissioned officers (NCO) and his repeated failure to keep up with the platoon on unit runs and hikes. On 19 September 1997, he was again counseled for being eligible but not recommended for promotion. On 2 December 1997, he was counseled after an unauthorized absence (UA) from battalion formation at the conclusion of Thanksgiving liberty. On 1 April 1998, he was counseled for being eligible for promotion but not recommended because of immaturity. On 3 April 1998, he received a second NJP for disrespect toward a NCO and wrongfully communicating a threat toward an NCO. After this NJP, he began a period of UA on 6 April 1998 which ended on 3 September 1998 after he was apprehended. On 16 October 1998, he pled guilty to the UA at special court-martial (SPCM). The SPCM adjudged a bad conduct discharge (BCD), reduction in rank, and confinement. While awaiting discharge, charges of wrongful use and possession of marijuana were preferred against Petitioner. On 17 February 1999, he pled guilty at SPCM for the wrongful use and possession of marijuana and was adjudged a BCD and confinement. The BCDs were subsequently approved at all levels of review, and on 4 May 2000, Petitioner was discharged. d. Petitioner, through counsel, contends clemency is warranted pursuant to references (b) through (d). Specifically, Petitioner contends the following: 1) Petitioner’s misconduct, which led to a BCD, is mitigated or excused by the existence of undiagnosed and untreated mental health conditions during his period of service. Specifically, he contends that he struggled with anxiety and depression during his period of service. a) Petitioner contends that his mental state worsened in mid-1996 when he began reporting to Sergeant S who targeted, ridiculed, and publicly humiliated Petitioner daily. Petitioner contends, and provides two supporting statements as evidence, Sergeant S threatened him in a physically intimidating manner, often screaming at him and hurling demeaning insults while standing inches from his face. Petitioner contends that the maltreatment continued until Petitioner’s UA in April 1998. b) Petitioner contends that his feelings of anxiety and insecurity led to impulsive decision-making and a failure to fully consider the consequences of his actions. Specifically, he married a woman he had been dating for less than two months, a decision he attributes to his “growing and persistent feelings of anxiety.” His wife broke off communications with him four months after their wedding. c) Petitioner sought medical help at the December 1997. He specifically told the doctor that “I think I am a manic depressive.” Petitioner contends that the doctor’s only action was to recommend stress management and anger management classes. Petitioner contends that Sergeant required him to take leave to attend the classes and his section leader “shunned him for being weak” and “shamed him in front of his colleagues,”resulting in Petitioner’s decision to not attend the classes. d) Petitioner contends that his attempted suicide in spring of 1998 is further evidence of his mental health condition during service. Specifically, he contends that he tried to commit suicide by overdosing on alcohol and pain medication. e) Post-service, Petitioner has been diagnosed with depressive disorder and anxiety disorder. His mental health provider reviewed his treatment records from his active duty time and, based on his ten-year relationship with the Petitioner and his review, stated Petitioner was “very likely suffering from an undiagnosed anxiety disorder or depressive disorder during his period of service.” He further states the behavior and misconduct is consistent with and likely motivated by the presence of such disorders. The provider also explains that a “person suffering from a depressive or anxiety disorder experiences severe emotional distress, is often emotionally overwhelmed, and experiences feelings of hopelessness, and these feeling can result in poor judgment, impulsiveness, and lack of adequate coping skills. f) Petitioner’s mental health provider further observed that Petitioner exhibited a similar pattern in his personal life which continues to effect his daily life. In addition to daily panic attacks, the mental health provider stated Petitioner attempted suicide by intentional overdose as recent as 2018. g) Petitioner contends that references (b) through (d) mandate liberal consideration be given to his petition. He further contends that, under the references, his mental health condition should be considered a mitigating factor. 2) Petitioner contends that he served with distinction during his first three years. He was a “dedicated worker who prepared well and performed well.” Hefurther contends that he was knowledgeable about weapon systems, successful in his anti-armor specialty, always prepared for uniform inspections, and earned awards. 3) In his submission, Petitioner explains his misconduct which led to his UA and eventual BCD. He contends that none of the misconduct was premeditated and points out that he sought help with his depression four months before fleeing. a) Petitioner contends that he was targeted by Sergeant S even more than usual while the platoon was dispatched on a 30-day training operation. Sergeant S yelled at him daily and put him on fire watch “almost every other night.” Petitioner contends that his anxiety became overwhelming so he left without authorization because it was “the only option Ifelt I had other than suicide.” Heregretted his decision almost immediately but did not feel he could return and described himself as feeling “paralyzed.” b) Petitioner contends that while awaiting discharge after his SPCM for the UA, he roomed with another Marine who was awaiting medical discharge. His roommate smoked marijuana. Petitioner contends that when the superiors smelled the marijuana and entered the room to inquire, since “he considered himself to be without any real possibilities for his own future,” Petitioner protected his roommate from potentially receiving a BCD by claiming the marijuana belonged to him. 4) Petitioner contends that his excellent post-service conduct demonstrates that his in-service misconduct was an aberration and not reflective of his character. Specifically, he devoted himself to becoming a model citizen, employee, and parent. From the advocacy letters submitted on his behalf, he is described as “the kind of person who will drop whatever he’s doing if afriend is in need of help” but “his concern extends not only to his friends, but also to strangers.” Another letter describes Petitioner as a devoted parent who sacrificed everything to move to his girlfriend’s hometown to be close to his son. f. As part of the Board’s review, a mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 21 June 2019. The AO states Petitioner is currently diagnosed with major depressive disorder but “it is not clear whether the mental health diagnosis should be attributed to military service almost 20years prior.” The AO further states Petitioner was not diagnosed with a mental health condition in-service and “the in-service evaluation seems to be a reasonable interpretation of Petitioner’s experience at the time of his evaluation.” The AO also states that “it is possible Petitioner’s decision to go UA could be attributed to a mental health condition that he may have been experiencing in-service, but additional information regarding his in-service mental health condition is required.” g. In his rebuttal of 29 July 2019, found at enclosure (3), Petitioner’s counsel raised several points and submitted additional post-service mental health treatment records which was reviewed by the Board. Specifically, the rebuttal states: 1) Several of the AO’s conclusions, as well as the standards it applies, are inconsistent with references (b) through (d). Counsel believes the AO applies a more stringent evidentiary standard than guidance permits and does not apply liberal consideration. Specifically, given that Petitioner’s in-service records show symptoms of major depressive disorder, the Board should give his application liberal consideration in finding the condition existed during his time of service. 2) The AO contains inaccuracies with respect to the supporting documentation submitted by Petitioner. Of specific note, the AO states there are no medical records reflecting Petitioner’s treatment after a suicide attempt but the rebuttal points to Petitioner’s service record and other supporting documentation reflect his 1998 suicide attempt in several places. 3) The AOgives the Board no basis to doubt Petitioner’s current mental health provider who has worked with and counseled Petitioner for over ten years. h. In response to enclosure (3), the mental health provider provided an updated AO which was considered by the Board. The AO notes the error in the year of the attempted suicide and further states, as revised, it is “consistent with his statement and supporting of experiencing symptoms of a mental health concern during his military service.” Noting the use of the “preponderance of the evidence” standard, which is the appropriate standard for the mental health provider and not “liberal consideration” which the Board applies, the AO states there is insufficient evidence to attribute all of Petitioner’s misconduct to a mental health condition experienced during military service. See enclosure (4). 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 reachingfair 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, applying liberal consideration and relying upon Petitioner’s diagnosed mental health condition, determined that there was sufficient evidence to support a finding that Petitioner’s mental health condition mitigated the misconduct that led to his BCD. The Board specifically noted Petitioner’s attempted suicide, efforts to seek help from a military provider, and the targeted mistreatment and ridicule received from Sergeant . The Board also noted the timeline of counseling and misconduct which ramped up in the summer of 1996 when the sergeant became Petitioner’s immediate supervisor. Applying liberal consideration, the Board concludes that the timeline supports Petitioner’s contentions regarding his state of mind at the time of UA. With respect to the second SPCM for wrongful use and possession of a controlled substance, the Board did not specifically determine that Petitioner did not use marijuana, as he contends in his submission, but, applying liberal consideration, concluded that any possible use would be mitigated by the mental health condition he was experiencing in-service. The Board, relying upon the mental health professional that has worked with Petitioner for over ten years and reviewing the specifics of his mental health condition, determined that Petitioner’s misconduct that led to his BCDs should be mitigated. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “general, under honorable conditions.” 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 24 October 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.