DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2096-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER Ref: (a) 10 U.S.C. § 1552 (b) 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 (c) USD 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 w/attachments (2) DD Form 214 (3) NAVMC 118(13), Record of Conviction by Court-Martial, 6 Dec 94 (4) CO Memo, subj: Notification of Separation Proceedings, 23 Jan 95 (5) Petitioner Memo, subj: Acknowledgment of my Rights to be Exercised or Waived during Separation Proceedings, 23 Jan 95 (6) CG Memo, subj: Administrative Discharge of [Petitioner], 13 Feb 95 (7) BCNR Advisory Opinion, 11 Mar 21 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 characterization of service be upgraded to honorable. 2. The Board reviewed Petitioner's allegations of error or injustice on 12 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 the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) and (c). 3. The Board, having reviewed all of the facts of record pertaining to Petitioner's allegations of error or 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 and began a period of active duty on 24 September 1992. See enclosure (2). c. On 29 November 1994, Petitioner was convicted by summary court-martial (SCM) for an unauthorized absence (UA) of 110 days in violation of Article 86, Uniform Code of Military Justice. His sentence included 30 days of confinement. See enclosure (3). d. By memorandum dated 23 January 1995, Petitioner was notified that he was being recommended for an administrative discharge for misconduct due to the commission of a serious offense. See enclosure (4). e. By memorandum dated 23 January 1995, Petitioner waived his right to consult with counsel and to present his case to an administrative discharge board. See enclosure (5). f. By memorandum dated 13 February 1995, the separation authority directed that Petitioner be administratively separated from the Marine Corps under other than honorable (OTH) conditions by reason of misconduct due to the commission of a serious offense. See enclosure (6). g. On 8 March 1995, Petitioner was discharged from the Marine Corps under OTH conditions for misconduct due to commission of a serious offense. See enclosure (2). h. Petitioner contends that he had a general anxiety disorder which predated his enlistment, but which was made worse by his service in the Marine Corps. He also claims that he witnessed a suicide attempt while in boot camp and that the grandmother who raised him died in 1994, and he started drinking to self-medicate himself for anxiety and depression after his grandmother’s death. He also asserts that he stayed home for a couple of months (presumably during his UA period) to take care of his ailing grandfather. See enclosure (1). i. Petitioner’s application and records were reviewed by a qualified mental health professional, who provided an advisory opinion (AO) for the Board’s consideration. The AO noted that Petitioner’s supervisors spoke favorably of his character and described him as a good Marine until his UA. It also noted that one of Petitioner’s supervisors referenced a change in behavior after the death of a family member (presumably his grandmother). The AO suggested that these statements indicated a concern with Petitioner’s behavior at the time which might have warranted a referral to mental health resources. The AO concluded that there was sufficient evidence that Petitioner exhibited behaviors associated with a mental health condition during his military service, and that his misconduct may be mitigated by his mental health condition. See enclosure (7). MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board concluded that the Petitioner’s request warrants partial relief in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon a mental health condition, his application was reviewed in accordance with the guidance of reference (b). Accordingly, the Majority applied liberal consideration to Petitioner’s claim that he suffered from the effects of an anxiety disorder and depression during his service, and the effect that these conditions may have had upon his misconduct. In this regard, the Majority substantially concurred with the findings of the AO. Although Petitioner provided no documentary evidence of his claimed mental health conditions, there was sufficient circumstantial evidence of a change in his behavior following the death of the grandmother who raised him. In addition to applying liberal consideration to Petitioner’s mental health condition(s) and the effect that they may have had upon his misconduct in accordance with reference (b), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Majority considered, among other factors, that Petitioner reportedly was a good Marine until the death of his grandmother; that Petitioner reportedly turned to alcohol to self-medicate for his anxiety and depression, which likely affected his judgment; the mitigating effect of Petitioner’s reported anxiety and depression upon his misconduct, as discussed above; Petitioner’s contention that he was in a UA status because he remained home to care for his ailing grandfather; Petitioner’s contention that he has overcome his drinking problem; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon the totality of the circumstances, the Majority determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions) in the interests of justice. The Majority considered whether to upgrade Petitioner’s characterization of service to fully honorable, but determined that the mitigating circumstances did not so far outweigh his significant misconduct to warrant such relief. MAJORITY RECOMMEDATION In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval record in the interests of justice: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions).” That no further changes be made to Petitioner’s naval record. That a copy of this record of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: After careful review and consideration of all of the evidence of record, the Minority of the Board found insufficient evidence of error or injustice to warrant any relief. The Minority also applied liberal consideration to Petitioner’s mental health conditions and the effect that they may have had upon his conduct in accordance with reference (b), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (c). In this regard, the Minority concurred that there was sufficient evidence that Petitioner may have been suffering from anxiety and depression at the time of his misconduct, and that these conditions may have contributed to his misconduct. The Minority also noted all of the potentially mitigating circumstances discussed in the Majority conclusion above. Even considering these factors, however, the Minority determined that relief was not warranted under the totality of the circumstances due to the severity of Petitioner’s misconduct. Contrary to the Majority, the Minority believed that Petitioner’s lengthy period of UA significantly outweighed all of the potentially mitigating circumstances, so relief is not warranted in the interests of justice. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no corrective action be taken on 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 5/5/2021 X Executive Director Assistant General Counsel (Manpower and Reserve Affairs) MAJORITY Recommendation Approved (Upgrade to General (under honorable conditions)) MINORITY Recommendation Approved (Deny Relief) Petitioner’s Request Approved (Upgrade to Honorable)