Docket No: 2089-20
Ref: Signature Date

From: Chairman, Board for Correction of Naval Records 
To:   Secretary of the Navy   
 
Subj: REVIEW OF NAVAL RECORD OF FORMER  , USMC, XXX-XX 
 
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 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 conforming changes to his DD Form 214.   
 
2.  The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 2 April 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 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. 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 27 February 2001.  Petitioner’s pre-enlistment physical and medical history noted no psychological or neurological conditions or symptoms.  Petitioner admitted to pre-service marijuana use and a DUI conviction at age sixteen on the enlistment application. 

d. On 2 October 2002 Petitioner received non-judicial punishment (NJP) for unauthorized absence (UA) and two specifications of failing to obey a lawful order.  On 26 October 2002 Petitioner’s command issued him a “Page 11” counseling sheet and retention warning (Page 11) for UA.  The Page 11 expressly warned Petitioner that a failure to take corrective action could result in processing for administrative separation or judicial proceedings.  However, on 21 November 2002, the suspended portion of the NJP from 2 October 2002 was vacated and enforced due to continuing misconduct.    

e. On 18 March 2004 Petitioner received NJP for the wrongful use of marijuana.  Additionally, in March 2004 Petitioner received three Page 11 warnings documenting his being placed on the liberty risk program, his illegal drug use, and advising him that the command was going to start processing him for administrative separation. 
 
f. On 26 March 2004 Petitioner was notified he was being processed for an administrative discharge by reason of misconduct due to drug abuse.  Petitioner expressly elected his rights to consult with counsel, and he elected to present his case to an administrative separation board (Adsep Board).    
 
g. On 29 June 2004 an Adsep Board was convened.  The Petitioner was represented by military counsel.  Following the presentation of evidence and witness testimony, by a majority vote, the Adsep Board members recommended that Petitioner be separated from the Marine Corps with an other than honorable conditions (OTH) characterization of service.  However, one Adsep Board member specifically recommended to the separation authority that Petitioner was worthy of a second chance and to allow him to continue to serve. 

h. In short, Petitioner contended that he was suffering from service-connected PTSD related to a traumatic incident in which he was part of a clean-up crew following an F-5 jet crash.  The Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service.      

i. As part of the review process, the Board’s Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO on 14 March 2021.  The MD initially observed that Petitioner was diagnosed with PTSD and major depressive disorder by a civilian physician, and received treatment from a PTSD specialist at the Department of Veterans Affairs after another confirmatory evaluation for PTSD.  The MD noted that both evaluations cited the 2002 aircraft crash and subsequent clean-up as the primary traumatic experience leading to PTSD, with PTSD symptoms originating during his military service and contributing to his misconduct and subsequent discharge.  The MD ultimately concluded by opining that the preponderance of objective evidence established Petitioner was diagnosed with PTSD post-discharge, suffered from service-connected PTSD, and that his in-service misconduct could be attributed to PTSD. 

CONCLUSION: 
 
Upon review and liberal consideration of all the evidence of record and in light of the favorable AO, the Board concluded that Petitioner’s request warrants relief.  Additionally, the Board reviewed his application under the guidance provided in the Hagel, Kurta, and Wilkie Memos.  Specifically, the Board considered whether his application was the type that was intended to be covered by these policies.  
 
In keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board felt that Petitioner’s PTSD mitigated the misconduct used to characterize his discharge.  The Board concluded that the Petitioner’s PSTD-related conditions and/or symptoms as possible causative factors in the misconduct underlying his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct.  With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions, and that a discharge upgrade to “Honorable” (HON) is appropriate at this time.       
 
Additionally, in light of the Wilkie Memo, the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the Petitioner merits an HON characterization of service.  
 
RECOMMENDATION: 
 
In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. 
 
That Petitioner’s character of service be changed to “Honorable,” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the reentry code be changed to “RE-1J.” 
 
Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty.  
 
Petitioner shall be issued a new Honorable Discharge Certificate. 
 
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. 
 
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.