DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1678-20 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER PVT , 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 Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (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)USD Memo, “Clarifying Guidance to Military Discharge Review Boards and 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 (Kurta Memo) (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 (Wilkie Memo) Encl: (1) DD Form 149 with attachments (2)Case summary 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and to make other administrative and conforming changes to his DD Form 214. 2. The Board, consisting of Ms. , Mr. , and Mr. , reviewed Petitioner's allegations of error and injustice on 28 May 2021, and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). Additionally, the Board also considered an advisory opinion (AO) furnished by a qualified mental health provider, and Petitioner’s rebuttal to said 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 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. The Petitioner enlisted in the Marine Corps and began a period of active service on 19 September 1977. Petitioner’s pre-enlistment physical on 10 June 1977 and medical history both noted no psychiatric or neurologic conditions or symptoms. d. On 29 April 1978, Petitioner commenced a period of unauthorized absence (UA) that terminated after forty-eight days on 16 June 1978 with his surrender to military authorities. On 7 August 1978 Petitioner submitted a voluntary written request for an administrative discharge under other than honorable conditions for the good of the service in lieu of trial by court-martial for four separate specifications of UA, to include the forty-eight day UA and three instances of being absent from his appointed place of duty. Prior to submitting this discharge request, the Petitioner 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. The discharge request expressly stated, in part: I understand that as a result of such discharge I may be deprived of virtually all rights as a veteran under both Federal and State legislation, and that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of the discharge received therefrom may have a bearing…Notwithstanding the adverse effects of such a discharge and understanding fully the advice given me in the premises, I persist in my request for a discharge under other than honorable conditions to avoid trial by court-martial. As a result of this course of action, Petitioner was spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Ultimately, on 6 September 1978, Petitioner was discharged from the Marine Corps at the rank of Private (E-1) with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. e. On 18 April 1983 the Naval Discharge Review Board (NDRB) denied Petitioner’s initial application for relief. The NDRB stated that Petitioner’s discharge was proper as issued and no relief was warranted. Petitioner had unsuccessfully argued to the NDRB, in part: My discharge of other than honorable is hindering me from obtaining jobs that promise some kind of stable future. I did not requested [sic] this type of discharge. When an employer asked what type of discharge I am turned down…If I knew the nature of this discharge I never would never agreed to it. I was never fully aware the outcome of my offense. f. At the time of Petitioner’s separation from the Marine Corps, his overall active duty trait average was 2.43 in conduct as assigned on his periodic evaluations. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 4.0 in conduct/military behavior to be eligible and considered for a fully honorable characterization of service. g. In short, Petitioner contended that he was dealing with PTSD and depression and that these diagnoses might have mitigated the misconduct leading to his discharged, and he further argued that contaminated water at Camp Lejeune played a significant role in his sudden change of character and depression that prevented him from making rational decisions. Petitioner argued that his mental health conditions were a causative factor for the behavior underlying his OTH discharge. h.As part of the review process, the BCNR Physician Advisor, who is a licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued an AO on 1 March 2021. The Ph.D. initially observed that Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes indicating a mental health condition. The Ph.D. noted that Petitioner contended contaminated drinking water at Camp Lejeune contributed to his misconduct but did not provide any documentation to support such contention. The Ph.D. also noted that throughout Petitioner’s administrative processing there were no concerns noted which would have warranted referral to mental health resources. The Ph.D. concluded by opining that although Petitioner has post-discharge diagnoses of depression and PTSD, the preponderance of available objective evidence failed to establish Petitioner suffered from a mental health condition on active duty or that his in-service misconduct could be mitigated by a mental health condition. i.Headquarters United States Marine Corps, Manpower and Reserve Affairs Department (HQMC) issued an AO on 14 May 2021 to address Petitioner’s promotion contention. HQMC opined that Petitioner met the minimum time in grade requirement for promotion to Private First Class (PFC) while on active duty. HQMC concluded by determining that Petitioner be promoted to PFC effective 1 April 1978 and that his record be forwarded to Defense Finance and Accounting Service (DFAS) for pay determination. CONCLUSION Upon review and liberal consideration of all the evidence of record, the Board concluded that given the totality of the circumstances, Petitioner’s request does not warrant relief with the exception of making administrative changes to the DD Form 214 independent from his primary request for discharge upgrade relief. The Board reviewed his application under the guidance provided in the Kurta, Hagel, and Wilkie Memos. Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. In accordance with the Hagel, Kurta, and Wilkie Memos, the Board gave liberal and special consideration to Petitioner’s record of service, and his contentions about any traumatic or stressful events he experienced and their possible adverse impact on his service. However, the Board concluded that there was no nexus between any PTSD or depression and/or their related symptoms and Petitioner’s misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions or symptoms were related to or mitigated the misconduct that formed the basis of his discharge. As a result, the Board concluded that Petitioner’s misconduct was not due to mental health-related symptoms. The Board determined the record clearly reflected that Petitioner’s misconduct was willful and deliberate and demonstrated he was unfit for further service. The Board also determined that the evidence of record did not demonstrate that Petitioner was not mentally responsible for his conduct. The Board noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. The Board did not believe that Petitioner’s record was otherwise so meritorious as to deserve a discharge upgrade and , USMC, determined that Marines should receive no higher discharge characterization than is due. The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine. The simple fact remains is that Petitioner left the Marine Corps while he was still contractually obligated to serve and he went into a UA status for over six weeks without any legal justification. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. The Board carefully considered any matters submitted regarding Petitioner’s post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances his request does not merit relief. Accordingly, the Board determined that there was no impropriety or inequity in Petitioner’s discharge, and even under the liberal consideration standard, the Board concluded that Petitioner’s serious misconduct clearly merited his receipt of an OTH, and that his separation was in accordance with all Department of the Navy directives and policy at the time of Petitioner’s discharge. Regarding Petitioner’s contention he suffered from the effects of tainted water while at Camp Lejeune, the Board concluded that he did not submit any convincing evidence to support his claim. Notwithstanding, the Board noted that if Petitioner indeed experienced any health-related issues due to contaminated Camp Lejeune water, he is not prohibited from receiving VA benefits due to his OTH discharge. As long as Petitioner did not receive a dishonorable discharge and meets certain qualifying criteria, Petitioner is eligible to potentially receive certain VA benefits related to tainted water at .1 RECOMMENDATION In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action to Petitioner’s DD Form 214 with a discharge effective date of 6 September 1978: That Petitioner’s record be corrected to reflect that his rank was Private First Class (E-2) effective 01 April 1978, and that he receive all pay and allowances due as a result of this change. Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty with the following changes: Petitioner’s date of birth be changed to “,” the grade, rate or rank be changed to “PFC,” the pay grade be changed to “E-2,” and the date of rank be changed to “01 April 1978.” That DFAS will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay and allowances. DFAS is authorized to pay all monies lawfully found to be due as a result of the above corrections to Petitioner’s naval record. That a copy of this report of proceedings be filed in Petitioner’s naval record. 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. 1 https://www.va.gov/disability/eligibility/hazardous-materials-exposure/camp-lejeune-water-contamination/ 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. 6/11/2021 Deputy Director