Docket No: 2593-19 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 18 “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) Mental Health Condition Advisory Opinion, NR20190002593 of 7 Feb 20 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with a request to upgrade his characterization of service and change his narrative reason for separation. 2. The Board, consisting of , reviewed Petitioner’s 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 an advisory opinion (AO) from a 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 9 December 2004 at the age of 20. Following the Petitioner’s first deployment, on 10 November 2005, the Petitioner was convicted at a Summary Court-Martial (SCM) for the wrongful use of methamphetamine. Towards the conclusion of Petitioner’s second Iraq deployment, on 21 August 2006 the Petitioner went to non-judicial punishment (NJP) for insubordinate conduct towards a noncommissioned officer. On 21 November 2006, the Petitioner went to NJP for unauthorized absence (UA) lasting three days and for disobeying a lawful order. On 25 January 2007, the Petitioner was convicted at a SCM for disobeying a lawful order. d. On 26 April 2007, the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to drug abuse, and misconduct due to a pattern of misconduct. He elected his right to consult with counsel, but expressly waived his right to present his case to an administrative separation board. On 17 August 2007, Petitioner was discharged from the Marine Corps with an other than honorable (OTH) characterization of service, with “Misconduct Due To DrugAbuse” 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 3.6 and 3.4, 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 developed post-traumatic stress disorder (PTSD) during his 2004 and 2005 deployments resulting in his acting out and self-medicating with drugs and alcohol. Petitioner further argued that the PTSD was a causative factor for the behavior underlying his separation and OTH discharge. Post-service, the VA diagnosed Petitioner with service-connected PTSD. 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 an AO dated 7 February 2020. The NMO observed that the Petitioner submitted evidence that he has a diagnosis of PTSD that his VA treatment providers have attributed to combat service. The NMO stated it was reasonable to attribute his misconduct following August 2006 to symptoms of PTSD. The NMO further stated that irritability, which could encompass disrespectful language and insubordinate conduct, is a symptom of PTSD, and that UA could be conceptualized as avoidance of reminders of traumatic events, as well as violating restriction, and alcohol use. The NMO stated that there was less information to indicate that the Petitioner’s substance use should be attributed to PTSD. The NMO concluded by opining that there was evidence that some, but not all, of the Petitioner’s misconduct could be attributed to symptoms of PTSD incurred following combat exposure. 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 partial 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, the Board 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. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board noted the Petitioner’s overall active duty trait average in conduct did not meet the Marine Corps minimum of a 4.0 for a fully honorable characterization. The Board also noted that an honorable discharge is appropriate only if the Marine’s service is otherwise so meritorious that any other characterization of service would be inappropriate. The Board concluded that significant negative aspects of the Petitioner’s conduct and performance outweighed the positive aspects of his military record and that a general (under honorable conditions) 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 Petitioner be issued a new General (Under Honorable Conditions) discharge certificate. 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 26 February 2019. 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.