DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3301-20 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , 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,” 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,” 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,” 25 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) Order Granting [Dkt.34] Defendant’s Motion for Voluntary Remand to the Board of Correction of Naval Records for Reconsideration, in the case of (2) DD Form 214 (3) NAVMC 118, Combat History, Expeditions, Awards Record (4) DD Form 149 with attachments (BCNR Docket No. 6512-16) (5) NAVMC 118(12), Offenses and Punishments, 2 May 91 (6) NAVMC 118(11), Administrative Remarks, 6 Apr 92 (7) NAVMC 118(12), Offenses and Punishments, 19 Aug 92 (8) NAVMC 118(11), Administrative Remarks, 24 Nov 92 (9) NAVMC 118(12), Offenses and Punishments, 22 Dec 92 (10) CO Memo, subj: Notification of Separation Proceedings, Case of: [Petitioner], 12 Feb 93 (11) CO Memo, subj: Recommendation for Administrative Discharge of [Petitioner], 18 Feb 93 (12) Record of Service , USMC, (13) DD Form 149 with attachments (BCNR Docket No. 0239-14) (14) Statute of Limitations Board Brief (15) Psychological Evaluation Re: Petitioner, , dtd 22 Nov 14 (16) BCNR Memo Docket No: 6512-16/239-14, subj: Review of Naval Record of [Petitioner], 20 Nov 17 (17) BCNR Memo Docket No: NR20200003301, subj: Advisory Opinion ICO [Petitioner], 11 May 2021 1. Pursuant to the Order of the U.S. District Court for the District of Connecticut and in accordance with the provisions of reference (a), the Board for Correction of Naval Records (Board) reconsidered its previous decision in Docket No. 6512-16 granting Subject, hereinafter referred to as Petitioner, an upgrade of his other than honorable (OTH) characterization of service to general (under honorable conditions), but denying his request to upgrade his characterization of service to fully honorable and to change the narrative reason for his separation. 2. The Board, consisting of Mr. , Mr. , and Ms. , reconsidered Petitioner’s allegations of error or injustice on 24 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 the enclosures, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies, to include references (b) – (e). 3. The Board, having reviewed all of the facts of record pertaining to Petitioner’s allegations of error or injustice, finds as follows: a. Petitioner enlisted in the Marine Corps and began a period of active duty service on 12 May 1990. See enclosure (2). b. From 7 February 1991 to 21 March 1991, Petitioner deployed to the Persian Gulf for Operation Desert Storm as a tank crewman. See enclosure (3). Petitioner previously provided the Board with a vivid account of his experience in the Persian Gulf while attached to the U.S. Army’s Division. Specifically, he described the scene when he first landed with dark skies and oil wells on fire, and recalled thinking that “this is what Hell would look like, with fire exploding from the ground.” He also described living in constant fear of exposure to chemical and biological weapons, as well as witnessing disfigured and burning bodies. Upon returning home from combat, Petitioner was stationed in a desert environment which reminded him of his experience in the Persian Gulf. See enclosure (4). c. On 2 May 1991, Petitioner received nonjudicial punishment (NJP) for wrongful use of amphetamines/methamphetamines in violation of Article 112a, Uniform Code of Military Justice (UCMJ). See enclosure (5). d. On 6 April 1992, Petitioner was counseled for a “complete lack of financial responsibility” after writing numerous bad checks to the Morale, Welfare and Recreation Activity Center. In this counseling statement, Petitioner was warned that further administrative actions may be taken if he continued to display a lack of financial responsibility. See enclosure (6). e. On 12 August 1992, Petitioner received his second NJP for an unauthorized absence (UA) from 6 July 1992 to 26 July 1992 in violation of Article 86, UCMJ. See enclosure (7). f. On 24 November 1992, Petitioner was counseled for two incidents of driving under the influence of alcohol (DUI). Specifically, he was arrested for DUI on Marine Corps Base in October 1992, and by civilian authorities in , in November 1992. Petitioner was directed to attend Level II substance abuse treatment in December 1992, and to refrain from driving a personally-owned vehicle (POV) until after his military and civilian court dates. He was also advised that any further deficiencies in his performance and/or conduct may result in disciplinary action and/or processing for administrative discharge from the Marine Corps. See enclosure (8). g. On 14 December 1992, Petitioner received his third NJP for failing to obey an order by operating a POV aboard the Combat Center while his driving privileges had been revoked, in violation of Article 92, UCMJ, and for DUI in violation of Article 111, UCMJ. See enclosure (9). h. On 24 December 1992, Petitioner was counseled for unsafe driving (i.e., driving 75 miles per hour (MPH) in a 55 MPH zone); having open containers of alcohol in his vehicle; wearing inappropriate civilian attire; and driving without a license. See enclosure (10). i. On 1 February 1993, Petitioner received his fourth NJP for failing to obey an order by operating a POV while on driving restriction, in violation of Article 92, UCMJ. See enclosure (9). j. By memorandum dated 12 February 1993, Petitioner was notified that he was being recommended for administrative separation by reason of misconduct due to a pattern of misconduct and drug abuse. All of the misconduct listed above was included in this notification memorandum. See enclosure (10). k. By memorandum dated 18 February 1993, Petitioner’s battalion commander recommended that he be separated from the Marine Corps under OTH conditions for misconduct due a pattern of misconduct and drug abuse. See enclosure (11). l. On 17 March 1993, Petitioner was discharged from the Marine Corps under OTH conditions for misconduct due to a pattern of misconduct and drug abuse. See enclosure (2). m. Until 3 June 1992, all of Petitioner’s Proficiency and Conduct Marks were 4.0 or higher. On 31 July 1992, Petitioner’s Proficiency and Conduct Marks dropped to 2.0, and on 31 January 1993 they dropped to 1.0. See enclosure (12). n. On or about 20 September 2013, Petitioner applied to this Board for an upgrade to his characterization of service. He stated in this application that he had service connected disabilities for which he would like to receive compensation. See enclosure (13). This application was denied by the Board for having been filed beyond the statute of limitations in accordance with reference (a).1 See enclosure (14). o. In September 2013, Petitioner began receiving treatment from the , which apparently is associated with the Department of Psychiatry of the School of Medicine. He was subsequently diagnosed with severe/chronic post-traumatic stress disorder (PTSD), with agoraphobic and depressive features. According to his mental health provider, Petitioner was suffering from PTSD upon his return from the Persian Gulf in April 1991, and this condition was the proximal cause of his NJPs for drug use, UA, misconduct, and DUI between May 1991 and February 1993. His provider stated in 2014 that Petitioner continues to suffer from PTSD, and is in need of health services from the Department of Veterans Affairs (VA). See enclosure (15). p. On or about 12 July 2016, Petitioner reapplied to the Board requesting that his characterization of service be upgraded to honorable and that his narrative reason for separation be changed to “Secretarial Authority.” See enclosure (4). Unlike his previous application, this application included evidence of Petitioner’s PTSD condition and an explanation for why Petitioner’s discharge should be upgraded. The Board waived the statute of limitations for this application in accordance with references (b) and (c). q. On 25 August 2017, the Under Secretary of Defense for Personnel and Readiness signed reference (d), which supplemented the guidance of reference (b) and provided the Board with a framework for reviewing requests by Veterans for modification of their discharges due in whole or in part to mental health conditions, including PTSD. r. On 28 August 2017, the Board reviewed Petitioner’s application discussed in paragraph 3p above. Citing to references (b) – (d), the Board granted Petitioner partial relief. Specifically, the Board found that Petitioner’s misconduct was mitigated by his PTSD condition, and directed that Petitioner’s characterization of service be upgraded to general (under honorable conditions). The Board did not, however, grant Petitioner’s request to change the narrative reason for his separation because the “varied nature and the frequency of [Petitioner’s] misconduct” did not merit a change to his separation narrative or his reentry and SPD codes. It also did not grant Petitioner’s request for an upgrade of his characterization of service to fully honorable, but did not explain its rationale for this decision. See enclosure (16). s. Subsequent to the issuance of enclosure (16), Petitioner filed suit against the Secretary of the Navy (SECNAV) in the U.S. District Court for the District of challenging the Board’s decision not to upgrade Petitioner’s characterization of service to fully honorable or to change the narrative reason for separation. Upon a motion for voluntary remand, the SECNAV’s representative acknowledged that the administrative record is insufficient to ensure that the 1 The only reason stated by Petitioner in enclosure (13) that the Board should find it to be in the interests of justice to waive the statute of limitations was that he was “trying to obtain VA disability benefits for service connected issues.” 2 Agoraphobia is an anxiety disorder characterized by a fear of places and situations which might cause panic, helplessness, or embarrassment. Board applied the guidance of reference (d) in its deliberations. Accordingly, on 24 April 2020, the U.S. District Court for the District of granted the motion for voluntary remand, and returned Petitioner’s case to the Board for reconsideration. t. In accordance with paragraph g(2) of reference (a), Petitioner’s application and records were reviewed by a qualified mental health professional who provided an advisory opinion (AO) for the Board’s consideration. This review revealed no evidence of any in-service diagnosis of a mental health condition, or of any in-service psychological or behavioral changes which may have indicated a mental health condition. The AO also found that no concerns were noted throughout Petitioner’s multiple disciplinary actions, counselings, and administrative separation processing which would have warranted referral to mental health resources. The AO did, however, find Petitioner’s application and narrative, along with his post-service diagnosis for PTSD, to be compelling, and that some of Petitioner’s misconduct (i.e., substance abuse, UA, reckless driving) were common behaviors of service members with untreated PTSD. Based upon the available evidence, the AO found that the preponderance of objective evidence indicated that Petitioner exhibited symptoms and behaviors of PTSD during his military service, and that his in-service misconduct could be mitigated by his PTSD condition. See enclosure (17). CONCLUSION Upon careful review and consideration of all of the evidence of record, the Board validated its previous determination in Docket No. 6512-16 that Petitioner’s characterization of service should be upgraded only to general (under honorable conditions), rather than to fully honorable. The Board reversed its decision regarding Petitioner’s narrative reason for separation, however, and determined that it should be changed to “Secretarial Authority” in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon his mental health condition, the Board reviewed Petitioner’s application in accordance with the guidance of references (b) – (d). Accordingly, the Board applied liberal consideration to Petitioner’s claim that he suffered PTSD as a result of his combat experience in Operation Desert Storm, and the effect that this condition may have had upon his misconduct. In this regard, the Board agreed with the AO, as well as the previous Board decision, that there is sufficient evidence that Petitioner suffered from PTSD while he was in the Marine Corps, and that this condition may have mitigated his misconduct. The Board did not, however, find that Petitioner’s condition mitigated all of the misconduct for which he was discharged. For example, while the Board found that Petitioner’s substance abuse, UA, and even his reckless behavior may have been mitigated by his condition, it found no nexus between Petitioner’s writing of bad checks and his PTSD condition as such conduct is not a reasonable consequence or reaction to an untreated PTSD condition. The Board determined that Petitioner’s condition, and its mitigating effect upon Petitioner’s misconduct, outweighed Petitioner’s misconduct. For this reason, the Board agreed with the previous decision in Docket No. 6512-16 to upgrade Petitioner’s characterization of service from OTH to general (under honorable conditions). However, the Board found that Petitioner’s PTSD condition did not so outweigh Petitioner’s misconduct to warrant an upgrade of his characterization of service to fully honorable. Specifically, the severe nature of Petitioner’s misconduct, particularly his DUI offenses which put other people at risk; the frequency of Petitioner’s misconduct, even after being given numerous opportunities and warnings to correct his behavior; and the fact that not all of Petitioner’s misconduct was mitigated by his PTSD condition, significantly offset the mitigating effect of Petitioner’s PTSD condition, making an upgrade to fully honorable inappropriate. In addition to applying liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his misconduct in accordance with references (b) – (d), the Board also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Board considered, among other factors, the mitigating effect of Petitioner’s PTSD condition upon some of the misconduct for which Petitioner was discharged, as discussed above; Petitioner’s combat service in Operation Desert Storm; that Petitioner developed PTSD as a result of his combat service and that this condition went undiagnosed and untreated for many years after his service; that Petitioner continues to suffer the effects of anxiety, agoraphobia, depressive symptoms, sleep disorder, and lack of concentration; that Petitioner achieved high Proficiency and Conduct Marks before his PTSD symptoms apparently took effect; the effect of Petitioner’s service and condition upon Petitioner’s marriage; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Again, and for the same reasons discussed above, the Board determined that the mitigating circumstances certainly outweighed Petitioner’s misconduct, but not so significantly to justify an upgrade of his characterization of service to fully honorable. Considering the nature and frequency of Petitioner’s misconduct, his service simply cannot be accurately characterized as honorable. Given the totality of the circumstances, the Board determined that the previous decision to upgrade Petitioner’s characterization of service to general (under honorable conditions), was appropriate and serves the interests of justice. Despite agreeing with the decision in Docket No. 6512-16 with regard to Petitioner’s characterization of service, the Board determined, contrary to its previous decision in Docket No. 6512-16, that Petitioner’s narrative reason for separation should be changed to “Secretarial Authority” in the interests of justice, since most of the misconduct for which Petitioner was discharged was mitigated by his PTSD condition. This change is attributable to the guidance of reference (e), which was promulgated after the Board’s previous decision. RECOMMENDATION: In view of the above, 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 the narrative reason for his separation was “Secretarial Authority”; that his separation authority was “MARCORSEPMAN PAR 6421”; and that his SPD code was “JFF.” That no further corrections be made 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 titled matter. 5. Pursuant to the delegation of authority set out in SECNAVINST 5420.193 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. 6/21/2021 Executive Director