DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD. SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6912-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW NA VAL RECORD OF FORMER 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," of25 August 2017 ( e) USD memo, "Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations," 25 July 2018 Encl: (1) DD Form 149 w/attachments (2) Post-service PTSD diagnosis of 5 May 05 (3) Advisory Opinion of 26 Feb 18 ( 4) Advisory Opinion of 4 Jun 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 (0TH) characterization of service be changed in light of current guidelines as reflected in references (b) through ( e ). 2. Petitioner's allegations of error and injustice on 30 July 2019 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 relevant portions of Petitioner's naval records, applicable statutes, regulations, and policies, and the enclosures, including Petitioner's post-service Post-Traumatic Stress Disorder (PTSD) diagnosis, as well as the 18 February 2018 and 4 June 2019 advisory opinions (AO). 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 regulation 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 waive the statute of limitations and review the application on its merits. c. Petitioner enlisted in Marine Corps on 11 August 1967. On 2 January 1968, he was convicted by summary court-martial (SCM) of an unauthorized absence (UA) totaling 38 days. On 6 May 1968, he was convicted by special court-martial (SPCM) ofUAs totaling 26 days. Petitioner was deployed to from 12 December 1968 to 14 August 1969. On 2 March 1970, Petitioner submitted a written request for discharge for the good of the service (GOS) to avoid trial by court-martial for 90 days of UA. Prior to submitting this request, he conferred with a qualified military lawyer, at which time he was advised of his rights and warned of the probable adverse consequences of accepting such a discharge. His request was granted, and his commanding officer was directed to discharge him with an other than honorable (0TH) characterization of service for the good of the service. As a result, Petitioner was spared the stigma of a court-martial conviction, as well as the potential penalties of such a punitive discharge. On 7 April 1970, he was discharged. On 4 November 1975, Petitioner was granted a clemency upgrade under Presidential Proclamation No. 4313. On 23 June 1976, he received his DD 215 documenting his satisfactory completion of the altemati ve service required by Presidential Proclamation No. 4 313. d. Petitioner submitted enclosure (2) as evidence of his post-service diagnosis of PTSD. e. On 2 November 2017, Petitioner requested consideration of his case based on his assertion that he had undiagnosed and untreated service-connected PTSD. An AO dated 26 February 2018 concluded that there was insufficient evidence to support Petitioner's contention that he suffered from PTSD. An AO dated 4 June 2019, however, concluded that Petitioner's request warrants favorable action. MAJORITY CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of enclosures (2) and (4), the majority, consisting of and , concludes that Petitioner's request warrants relief. The majority reviewed Petitioner's application under the guidance provided in references (b) and (c). Specifically, the majority considered whether his application was the type that was intended to be covered by this policy. The majority concluded that, based upon Petitioner's record of service, enclosure (2), and the AO at enclosure ( 4 ), relief in the form of his characterization of service should be changed to general (under honorable conditions). The majority noted Petitioner's misconduct and does not condone his actions. However, the majority's decision is based on Petitioner's evidence as reflected in the favorable AO and his post-service diagnosis. The majority concluded that Petitioner's PTSD existed at the time of his misconduct, which resulted in his 0TH discharge. After carefully considering all the evidence, the majority determined that Petitioner's PTSD should mitigate the misconduct because this condition outweighed the severity of the misconduct. The majority also determined that no useful purpose is served by continuing to characterize Petitioner's service as having been other than honorable, and that re-characterization to a general discharge is now more appropriate. In view of the foregoing, the majority finds the existence of an injustice warranting the following corrective action. MAJORITY RECOMMENDATION: That Petitioner's naval record is corrected to show that he was discharged with a general (Wider honorable conditions) characterization of service on 7 April 1970. That Petitioner is issued a new Certificate of Release or Discharge from Active Duty (DD Form 214). 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 2 November 2017. MINORITY CONCLUSION: The Board's minority concludes that Petitioner's request does not warrant favorable action. The minority noted that there is insufficient evidence to support relief. In this regard, the minority agreed with enclosure (3) that there is insufficient evidence to support Petitioner's contention that he suffered from PTSD. The minority disagreed with enclosure ( 4) that there is sufficient evidence to support that Petitioner had service-connected PTSD. The minority noted that, while avoidance is a hallmark symptom characteristic of PTSD, and could be an explanation of Petitioner's UA following his return from Vietnam, Petitioner had three instances of UA prior to his deployment. Therefore, the minority disagreed with the determination that Petitioner's asserted PTSD should mitigate the misconduct he committed while on active duty. MINORJTY RECOMMENDATION: That Petitioner's request is denied. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (3 2 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. 5. The foregoing action of the Board is submitted for your review and action.