Docket No: 6070-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER XXX XX USMC 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 (e) USECDEF Memo, “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 with attachments (2) Case summary (3) Advisory Opinion, Docket No: NR20190006070 of 13 Oct 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting correction to his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an honorable characterization of service. His case, which was most recently denied by the Board on 16 November 2018, was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 30 October 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, as well as the enclosed 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 regulations within the Department of the Navy. b. Petitioner enlisted in the Marine Corps on 7 June 2004. From 7 August 2005 to 7 March 2006, he was deployed in support of Operation Iraqi Freedom. On 19 April 2007, Petitioner received nonjudicial punishment (NJP) for lying to a sergeant, operating a motor vehicle without insurance, removing a Department of Defense (DoD) base decal from a vehicle not in his possession and applying it to his vehicle, over-drafting his banking account, and having his car repossessed for failure to make payments. On 25 July 2007, Petitioner was counseled for insubordinate conduct, failure to obey an order, wrongful appropriation, writing a check with insufficient funds, and failing to meet financial obligations. On 7 December 2007, he received a second NJP for writing a check with insufficient funds. On 1 February 2008, he received a third NJP for wrongfully appropriating a DoD base decal and fraudulently using it on his vehicle. Subsequently, Petitioner was notified of pending administrative separation action by reason of misconduct due to pattern of misconduct. After he waived his procedural rights, Petitioner’s commanding officer (CO) recommended administrative separation by reason of misconduct with an other than honorable (OTH) characterization of service. The discharge authority concurred with the CO and directed Petitioner be discharged with an OTH characterization of service by reason of misconduct. Petitioner was discharged on 8 May 2008. At the time of discharge, his average PRO/CON marks were 4.0/3.9. c. Petitioner contends he was unjustly awarded an OTH characterization of service. Specifically, he contends the following: i) His ex-wife wrote the check for insufficient funds, on an account he had closed, which led to his administrative processing. He contends he is not guilty by association with his ex-wife. ii) The NJP and counseling he received were the result of his undiagnosed PTSD. In a psychological opinion from 1 May 2019, the mental health provider determined Petitioner’s minor infractions are more likely than not related to his PTSD. His PTSD interfered with his ability to maintain an emotionally healthy and financially supportive relationship and specifically led to his marital breakdown after he experienced trauma while deployed to Iraq. Further, the clinician specifically noted Petitioner’s exemplary record of service prior to deployment and post-treatment for PTSD and concluded Petitioner’s poor judgment and impulsivity occurred after his combat deployment and during a time he was undiagnosed and untreated. iii) His post-service record warrants clemency. Specifically, he has been employed by the State of as a court security officer for the Justice of the Peace who states Petitioner is “a tested and true veteran deserving of an honorable discharge.” The Deputy Chief with the Office of the Justice of the Peace also provided an advocacy letter stating Petitioner has “proven time and again his dedication to our agency” and the Deputy considers it a privilege to have him as a member of the team. Petitioner also serves as a volunteer fire fighter, and the Fire Chief provided an advocacy letter stating Petitioner is “an upstanding young man and firefighter” who is “hardworking, efficient, knowledgeable, and always dependable.” iv) Reference (d) guidelines are satisfied. Petitioner suffered from undiagnosed PTSD after his deployment. His PTSD occurred during military service, excuses/mitigates his discharge, and outweighs his discharge. d. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 13 October 2020. The AO confirms Petitioner’s service-connected post-discharge PTSD diagnosis. The AO states the behaviors and psychological symptoms Petitioner described are the type of behaviors that someone who suffered from PTSD may experience. The AO further states Petitioner’s description of these behaviors and psychological symptoms is sufficiently detailed and lend credibility to his contention. Based on the available evidence, the AO concludes there is sufficient indirect evidence that Petitioner exhibited behaviors attributable to PTSD during his military service and that his misconduct may be mitigated by his PTSD. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. The Board reviewed his application under the guidance provided in references (b) through (e). 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, applying liberal consideration and relying on the AO, determined there was sufficient evidence to support a finding that Petitioner’s PTSD mitigated the misconduct that led to his administrative discharge but the repeated misconduct did not warrant the requested upgrade to honorable. In the interest of justice and in light of the potential for future negative implications, the Board determined Petitioner’s narrative reason, separation code, and separation authority should be changed to “secretarial authority.” RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating his characterization of service as “general, under honorable conditions,” narrative reason for separation as “secretarial authority,” separation code as “JFF1,” and separation authority as “MARCORSEPMAN 6421.” 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 17 June 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 Regulation, 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. 12/18/2020 Executive Director