From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF 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 Traumatic Brain Injury (TBI),” of 24 February 2016 (d) USD 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 (e) SECDEF memo of 25 Jul 2018 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 (2) Advisory Opinion of 22 July 2020 (3) Petitioner’s 31 August 2020 rebuttal to the Advisory Opinion. 1. Pursuant to the provisions of reference (a), Petitioner, a former member of the U.S. Marine Corps, filed enclosure (1) with th the Board for Correction of Naval Records (Board), requesting that his other than honorable characterization of service be upgraded to honorable or in the alternative general (under honorable conditions), and for his narrative reason for separation to be changed to “Secretarial Authority.” As noted below, the Board voted to upgrade his discharge characterization of service to general (under honorable conditions) and to change his narrative reason to “Secretarial Authority.” 2. Regarding Petitioner’s request for a personal appearance, Board regulations state that personal appearances before the Board are not granted as a right, but only when the Board determines that such an appearance will serve some useful purpose. In this case, the Board determined that a personal appearance was not necessary and considered Petitioner’s case based on the evidence of record. 3. The Board, consisting of , , and , reviewed the subject-former member’s allegations of error and injustice on 4 September 2020, and pursuant to its 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 enclosure, relevant portions of the subject-former member’s naval records, and applicable statutes, regulations, and policies. The Board also considered a 22 July 2020 advisory opinion (AO) of a psychiatrist, which is at enclosure (2), as well as Petitioner’s rebuttal to the AO, which is at enclosure (3). 4. The Board, having reviewed all the facts of record pertaining to the subject-former member’s allegations of error and injustice, finds as follows: a. Before applying to this Board, the Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. The Petitioner enlisted in the Marine Corps on 17 December 1973. The Petitioner’s record was free of incident until his return from overseas service. Thereafter, between the period of April 1975 through April 1977, he received nonjudicial punishment on two occasions, and was convicted by a summary and two special courts-martial. The offenses included unauthorized absence (UA) to disobeying orders, and disrespect. His final scheduled court-martial included an 83-day UA. However, the Petitioner ultimately submitted a request to be discharged to avoid a trial by court-martial for a final period of UA and he was discharged with an other than honorable characterization of service on 4 August 1977. c. The Petitioner contends that his misconduct usage should be mitigated by in-service mental health stressors. The Petitioner also contends that his post-service accomplishments are deserving of clemency. d. The Board requested an opinion from a psychiatrist, who prepared an AO dated 22 July 2020. According to the AO,“Petitioner had been diagnosed while in service with Character (Personality) Disorder and Bereavement (Reactive Depression-Grief Reaction). There was no evidence in the available records of additional mental health conditions or indication that Petitioner was not responsible for his actions. Petitioner did not provide any additional clinical records containing any additional diagnoses of mental health conditions or linking his misconduct and claimed mental health conditions.” Thus, the AO opined that the Petitioner failed to demonstrate that his mental health condition mitigated his conduct while he was in service. e. In his rebuttal, the Petitioner asserted that the AO incorrectly applied the standard by discussing a finding that when Petitioner was in the service he was competent to stand trial and then, according to the Petitioner, uses this finding to determine his mental health condition did not mitigate his conduct. The Petitioner argues that the standard for legal competency is not relevant to this Board’s application of the “Kurta memo,” specifically, the USD 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. f. Although the Board did not necessarily agree with the reasoning of the Petitioner in his argument in rebuttal, the Board was convinced that upon a review of the total facts and circumstances relating to Petitioner (mental health condition, his overall background circumstances he has asserted, as well as post-service clemency factors), he should be entitled to relief. CONCLUSION Upon review and consideration of all the evidence of record, in view of references (b) through (e), the Board finds the existence of an error or injustice warranting relief. Specifically, the Board concluded that Petitioner’s mental health concerns mitigated his misconduct and his subsequent discharge, and, in light of his overall circumstances and post-servivce conduct, he is entitled to relief in the form of an upgrade in his character of service to general (under honorable conditions) and his narrative reason be changed to “Secretarial Authority.” Inasmuch as the Petitioner sought relief in the form of an upgrade to a general or honorable discharge as well as the change to the narrative reason to “Secretarial Authority,” the relief granted is considered full relief. RECOMMENDATION In view of the above, the Board directs the following corrective action: Petitioner’s naval record be corrected by issuing him a new DD Form 214 reflecting that the characterization of his service at his discharge from the Marine Corps was general (under honorable conditions), narrative reason for separation: “Secretarial Authority,” SPD code assigned “JFF,” reenlistment code “RE-1J,” separation authority “MARCORSEPMAN 6207.2,” Issue Petitioner a certificate of discharge reflecting general (under honorable conditions) service, and No further action be granted. A copy of this report of proceedings shall be filed in Petitioner’s naval record. That upon request, the Department of Veterans Affairs is informed that Petitioner’s application was received by the Board on 22 March 2019. 5. 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. 6. 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.