Docket No: 3886-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) SECDEF memo of 3 Sep 14, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” (c) PDUSD memo of 24 Feb 16, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) PDUSD memo of 25 Aug 17, “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” (e) USD memo of 25 Jul 18, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 (NR20200003886) (2) BCNR, Advisory Opinion 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with this Board requesting an upgrade to his discharge to reflect an honorable characterization of service. Enclosure (2) and references (a) through (e) apply. 2. The Board reviewed Petitioner's allegations of error and injustice on 25 June 2021, 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, relevant portions of his naval service records, and applicable statutes, regulations, and policies, and the relevant Advisory Opinion. 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 interest of justice to waive the statute of limitations and review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 9 September 2003. d. Petitioner had a period of unauthorized absence (UA) from 5 to 17 December 2003. On 24 December 2003, Petitioner received nonjudicial punishment (NJP) for violating Uniform Code of Military Justice (UCMJ) Article 86 (absence without leave) and Article 103 (abandoned property, failure to secure—did throw his weapon and his war gear in the bushes while going UA). e. Petitioner deployed to Iraq from 7 September 2004 through 16 March 2005, in support of Iraqi Freedom, and participated in combat operations. f. On 24 January 2007, Commanding Officer (CO), 7th Engineer Support Battalion informed Petitioner that he was suspected of using THC based on a urinalysis conducted on 25 November 2006. The CO further informed Petitioner that he was prepared to refer the allegation against him for trial by special court martial; however, if Petitioner was willing to plead guilty to the allegation and waive his administrative separation board, the CO would find that NJP alone would be appropriate. g. On 30 January 2007, Petitioner received NJP for violating UCMJ Article 112a (wrongful use of a controlled substance, positive urinalysis for THC). h. On 31 January 2007, CO, notified Petitioner of administrative separation proceedings against him on the basis of wrongful use of THC with a recommendation that Petitioner receive an other than honorable discharge. i. Petitioner acknowledged his rights on 31 January 2007, and waived his right to appear before an administrative separation board. j. On 1 February 2007, Petitioner’s CO recommended that Petitioner receive an other than honorable discharge; on 7 February 2007, the Staff Judge Advocate reviewed the administrative separation proceedings against Petitioner and found them sufficient in law and fact. k. On 1 March 2007, Petitioner was discharged on the basis of Misconduct and received an other than honorable discharge. l. On 17 July 2013, the Naval Discharge Review Board (NDRB) notified Petitioner that it found Petitioner’s discharge proper as issued and determined that no change was warranted. m. On 15 June 2019, the Department of Veterans Affairs (VA) granted Petitioner a 70% disability rating for service connected traumatic brain injury (TBI) with post traumatic stress disorder (PTSD). n. In his application to the Board Petitioner requests an upgrade to his discharge characterization from other than honorable to honorable. He asserts that NDRB erred by not upgrading his discharge to an honorable characterization of service. Petitioner states that under the current Department of Defense policy, his PTSD should be considered as mitigating his discharge. Petitioner further states that he spent almost the entirety of his deployment to Iraq in Fallujah, and that he was significantly involved in combat where he primarily provided convoy security and was part of a quick reaction force when necessary. Petitioner also states he was heavily involved in Operation Phantom Fury. Petitioner contends that while he was still deployed, he began experiencing sleepless nights, nightmares, anxiousness and hypervigilance, leading him to isolate himself from others when he could. Upon returning to in March 2005, he reported symptoms of PTSD and began receiving treatment. He states that he was not allowed to deploy, despite wanting to do so, and was placed in a new Company with a squad of other Marines who were not permitted to deploy. Petitioner felt that he was assigned to remedial work and experienced a sense of inadequacy. He states that in November 2006, he went on a 96 hour period of liberty with other members of his unit and made the mistake of trying marijuana. He self-admitted to the use prior to the results of his urinalysis. o. As part of the review process, an Advisory Opinion was issued. The Advisory Opinion concluded that based on the available evidence, there is sufficient evidence that Petitioner exhibited behaviors associated with PTSD during his military service and his misconduct may be mitigated by his mental health condition. p. The Board, in accordance with the current guidance regarding discharge reviews for veterans who suffer from PTSD and/or mental health conditions (references (b) through (d)) and in light of the Department of Defense’s most recent equity, injustice, and clemency guidance. (reference (e)) reviewed Petitioner’s application, and the applicable Advisory Opinion, and carefully weighed all potentially mitigating factors, such as the Petitioner’s personal statement, and the VA’s determinations. CONCLUSION The Board determined that liberal consideration should be applied to Petitioner’s request. The Board noted Petitioner’s significant combat experience in Iraq, his reporting of mental health concerns post-deployment, the nature of his misconduct, and his post-discharge VA determination. The Board concurred with the Advisory Opinion and concluded that Petitioner’s misconduct is mitigated by his in-service mental health issues. The Board determined, however, that in consideration of Petitioner’s pre-deployment misconduct as documented in his 24 December 2003 NJP, that he is entitled to an upgrade to a general discharge rather than an honorable characterization of service. The Board noted Petitioner’s overall Proficiency and Conduct marks, but found that his pre-deployment misconduct merited a general characterization of service and that no further corrective action was warranted. CONCLUSION The Board determined that liberal consideration should be applied to Petitioner’s request. The Board noted Petitioner’s significant combat experience in Iraq, his reporting of mental health concerns post-deployment, the nature of his misconduct, and his post-discharge VA determination. The Board concurred with the Advisory Opinion and concluded that Petitioner’s misconduct is mitigated by his in-service mental health issues. The Board determined, however, that in consideration of Petitioner’s pre-deployment misconduct as documented in his 24 December 2003 NJP, that he is entitled to an upgrade to a general discharge rather than an honorable characterization of service. The Board noted Petitioner’s overall Proficiency and Conduct marks, but found that his pre-deployment misconduct merited a general characterization of service and that no further corrective action was warranted. RECOMMENDATION: That Petitioner’s naval record be corrected to show that on 1 March 2007, Petitioner was issued a general discharge. That Petitioner be issued a new DD Form 214. 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 21 May 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 Regulation, 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.