DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3339-20/ 6419-77 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 with attachments 1. Pursuant to the reference, Petitioner, a former enlisted Marine, filed the enclosure with the Board for Correction of Naval Records (Board) requesting correction to his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service, change to the narrative reason for separation, and correction of his social security number (SSN). His case, which was most recently denied by the Board on 3 June 1980, was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 7 May 2020, and, pursuant to its regulations, determined the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of his naval service 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. Although the enclosure was not filed in a timely manner, it is in the interest of justice to review the application on its merits. c. Petitioner enlisted in the Marine Corps on 29 April 1969 after receiving an approved waiver of civil offenses. On 2 July 1969, he received non-judicial punishment (NJP) for willfully disobeying a lawful order from a staff sergeant to “do physical exercise.” On 19 January 1970, he received a second NJP for an unauthorized absence from the commanding officer’s inspection. On 20 January 1970, he was placed in pre-trial confinement (PTC) for striking a Marine captain in the face with his hand while at a club. On 19 March 1970, while in PTC, he assaulted two enlisted guards. d. On 15 June 1970, Petitioner was convicted by general court-martial (GCM) for willfully disobeying a superior commissioned officer by striking a captain in the face with his hand and insubordinate conduct toward a noncommissioned officer or petty officer by assaulting a sergeant on the face with his fist and a corporal on the face with his fist and kicking the corporal in the thigh with his foot. He was awarded three years confinement, forfeiture, and a dishonorable discharge (DD). In accordance with a plea agreement, the convening authority approved an 18-month period of confinement, the forfeiture, and the DD. In September 1970, the United States Navy Court of Military Review affirmed the findings of guilty and the sentence as approved on review, with one judge concurring in the findings but not agreeing with the sentence that was affirmed. Specifically, the judge was of the opinion that “a lengthy period of confinement will benefit neither the accused nor the Navy but it is in the nature of retribution. Furthermore, a dishonorable discharge will rest heavily upon the shoulders of this accused the rest of his days and in itself is severe punishment.” The judge affirmed only so much of the sentence as provided for a DD, 12 months confinement, and forfeiture. On 26 October 1970 and 17 August 1971, Petitioner was denied clemency by the Naval Clemency and Parole Board. e. On 6 October 1971, Petitioner was dishonorably discharged. He was issued a DD Form 214 which states he received a “DD-260-MC” certificate which reflects a “Dishonorable Discharge.” Block 13a lists his characterization of service as “under conditions other than honorable” which is inaccurate based on the sentence affirmed by the US Navy Court of Military Review. f. Petitioner, through counsel, requests clemency in his discharge characterization because the circumstances leading to his discharge were fueled by racial animus from his superiors and other Marines stationed at Camp Lejeune. 1) Petitioner contends he had difficulty adjusting to the culture at and because his command “treated black and white service members differently” and white service members and superiors would “attempt to goad him into fights with racial slurs or other derogatory comments with racial overtones.” He further contends the comments were common and accepted by the command. 2) Petitioner contends he suffered from lactose intolerance and was told by a doctor that “he should never have been permitted to enlist due to his lactose intolerance.” He further contends the lactose intolerance created difficult conditions while he was serving his confinement. Specifically, he contends he was beat by prison staff after he got diarrhea from his lactose intolerance. 3) While incarcerated, Petitioner contends his mother was very ill, could not work or complete housework, and was struggling financially. 4) Petitioner’s counsel contends his application should receive the same liberal consideration as applied to mental health and military sexual assault cases. Counsel further contends race-based harassment and trauma fits within the intended purpose of the liberal consideration standards because it “has the same hallmarks” as other categories of trauma. Specifically, Petitioner contends: a) His service record is mitigated by race-based harassment and discrimination. Petitioner submitted historical research and documentation which showed Camp Lejeune was significantly criticized for the presence of racial prejudice and tension. b) He experienced race-based harassment and trauma during his military service as documented in his record, specifically in the report of the incident where jail staff entered the bathroom and beat him while he was suffering from diarrhea. Petitioner also contends he was the only person punished for the fight that led to his sentence and discharge. c) His experiences of race-based harassment mitigates his misconduct. Petitioner specifically contends he “struggled to sit by and not defend himself in response to threats and intimidation from white Marines.” He further contends that he did not instigate any of the fights. d) His experiences of race-based harassment outweigh his misconduct. Petitioner states he regrets his action and “does not wish to diminish the severity of his action” but is only asking the Board to “appreciate the circumstances he served under.” He further contends he has already suffered “greatly and disproportionately” for more than 50 years, missing out on benefits and other veteran-focused resources. 5) Petitioner contends he warrants clemency due to his significant health issues which have resulted in his need to live in an assisted living facility for low-income seniors. g. Petitioner’s SSN on his DD Form 214 currently reads “ ” According to his service record, his SSN should read .” CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. The Board carefully reviewed Petitioner’s application, weighed all potentially mitigating factors, and considered each contention outlined above. The Board noted Petitioner’s pre-service admissions of misconduct and his willful disobedience of a lawful order which resulted in NJP, all of which occurred prior to his arrival at , and determined his tendency to react in an aggressive manner was not solely caused by race-based harassment. Applying liberal consideration, the Board determined a dishonorable discharge was too harsh for the misconduct adjudicated by the GCM and concluded it was in the interest of justice to upgrade Petitioner’s characterization of service. The Board determined the race-based harassment mitigated but did not excuse Petitioner’s unlawful response and the resulting misconduct warranted an other than honorable (OTH) characterization of service. The Board also determined the current narrative reason for separation appropriately and accurately reflects the circumstances which resulted in Petitioner’s OTH discharge from the Marine Corps. The Board determined Petitioner's SSN should be listed as " ." RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating his characterization of service as “other than honorable " and his SSN as " ." That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 29 April 2020. 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.