Docket No. 168-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR USMC Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/attachments (2) Psychiatric Advisor CORB letter 1910 CORB: 002 of 25 June 2020 (3) Director CORB letter 1910 CORB: 001 of 17 July 2020 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 Petitioner’s naval record be corrected to upgrade his characterization of service to Honorable and place him on the disability retirement list. 2. The Board reviewed Petitioner’s allegations of error and injustice on 3 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 enclosures, naval records, and applicable statutes, regulations and policies. 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 entered active duty with the Marine Corps in December 2007. He served without incident until September 2009 when non-judicial punishment was imposed on him for unauthorized absence. He subsequently deployed to the Philippines in support of joint task force operations as a linguist where he alleges witnessing traumatic events that led him to abuse alcohol and suffer mental health symptoms. Upon redeploying back to CONUS in February 2010, Petitioner was admitted for mental health treatment. On 26 February 2010, he was diagnosed with an adjustment disorder and prescribed medication for treatment. During this time, he was also being treated in a civilian facility for paraphilia that continued through January 2011. Petitioner continued to be evaluated throughout his remaining time on active duty and was diagnosed with an anxiety disorder on multiple occasions including during his placement on limited duty. However, his disability case was ultimately suspended while he was processed for misconduct. His last active duty diagnosis of anxiety disorder in remission was on 7 June 2011. c. While Petitioner was being treated for his mental health condition and pending disability processing, he was committing misconduct. Non-judicial punishment was imposed on him for assault and insubordination in August 2010 and again in March 2011 for unauthorized absence, insubordination, orders violation, false official statement, and obstruction of justice. Finally, he was convicted at a special court-martial on 3 May 2011 for disrespect, orders violation, and breaking restriction. Based on his misconduct, Petitioner was processed for administrative separation and discharged with an Other than Honorable characterization of service on 22 July 2011. d. Post-discharge, Petitioner appears to have turned his life around. He secured employment as a software quality assurance tester and attended college to earn a mathematics degree. Witness statements attest to his great successes as an employee and student while lauding his good character. Despite these successes, Petitioner was diagnosed with Post-Traumatic Stress Disorder (PTSD) in 2017. A medical determination was made that his misconduct while on active duty was related to his PTSD. He is seeking placement on the disability retirement list for his PTSD along with an upgrade to his characterization of service. e. In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to be placed on the disability retirement list determined that the evidence does not support relief. The opinion states there is insufficient evidence that Petitioner was unfit for PTSD at the time of his discharge based on medical evidence that he was never diagnosed with PTSD in approximately 30 mental health evaluations while on active duty. Additionally, the opinion points out his disability case was appropriately suspended due to his misconduct and administrative separation that resulted in an Other than Honorable characterization of service. Finally, it states that Petitioner’s mental health symptoms appear to have improved significantly just prior to his discharge from the Marine Corps. His condition was diagnosed to be in remission, he performed well as a linguist while awaiting trial, and he had no psychiatric symptoms noted in his confinement physical. CONCLUSION Upon review and consideration of all the evidence of record, a majority of the Board finds the existence of an injustice warranting the following partial corrective action. MAJORITY CONCLUSION Upon review and consideration of all the evidence of record, the majority concludes that the Petitioner’s characterization of service should be upgraded to General under Honorable Conditions. The majority of the Board concurs with the available evidence provided by the Petitioner, finding the existence of an injustice warranting corrective action. The majority determined that the Petitioner was suffering from a mental health condition when he committed the misconduct that formed the basis for his Other than Honorable characterization of service and a nexus exists between his mental health condition and his misconduct. They based their findings on the 2017 medical opinion that states Petitioner likely suffered from PTSD after his deployment and this contributed to his misconduct. Based on the severity of his mental health condition that was resulted in his placement on limited duty, the Board felt the interests of justice merit upgrading his characterization of service to General under Honorable conditions. While the Board was able to reach the conclusion that the severity of his mental health condition outweighed the seriousness of his misconduct to upgrade him to a General, after applying the same analysis, they were unable to reach a similar conclusion to upgrade him to an Honorable. Only through the application of liberal consideration was the Board able to find an injustice in this case and, in the Board’s opinion, the level of injustice was not sufficient to outweigh the seriousness of Petitioner misconduct to award him an Honorable characterization of service. Regarding Petitioner’s request to be placed on the disability retirement list, the Board determined the evidence does not support relief. In making their finding, they substantially concurred with the advisory opinions in the case. Specifically, they concluded Petitioner was not eligible for military disability processing due to his misconduct that resulted in an Other than Honorable characterization of service. Additionally, the Board also determine the preponderance of the evidence does not support a finding he was unfit for continued naval service at the time of his discharge. Petitioner’s anxiety disorder was in remission, he showed no symptoms, and he was seeking to remove himself from medication. This improvement in his condition along with his post-discharge successes as an employee and student convinced the Board insufficient evidence of unfitness exists to place him on the disability retirement list. MAJORITY RECOMMENDATION That Petitioner’s naval record be corrected upgrade his characterization of service to General under Honorable condition. Petitioner will be issued a new DD Form 214 consistent with this change. MINORITY CONCLUSION A minority of the Board concluded, despite applying liberal consideration, that no relief should be granted based on a finding that the seriousness of Petitioner’s misconduct outweighed the mitigation created by his mental health condition. The minority determined that Petitioner’s three non-judicial punishments and special court-martial conviction documents significant misconduct that appropriately resulted in an Other than Honorable characterization of service. Based on Petitioner’s lack of symptoms leading up to his discharge, his mental health condition was not sufficiently severe to offset the seriousness of his misconduct. The minority of the Board concurred with the majority’s findings regarding Petitioner’s request to be placed on the disability retirement list. MINORITY RECOMMENDATION That Petitioner’s request be denied in its entirety. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that 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. 9/8/2020 Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and approved the Majority Recommendation (Grant Partial Relief) 9/27/2020