Docket No: 4181-20 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 PTSD,” of 3 September 2014 (c)PDUSD Memo, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records (BCMRs/BCNR) by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (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 (e)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 with attachments (2) DD Form 214 (3) NAVMC (11), Administrative Remarks (4) NAVMC 118(13), Record of Conviction by Summary Court-Martial, 5 Apr 04 (5) Memo, subj: Recommendation for Administrative Separation; Case of [Petitioner], 2 Feb 04 (6) Co Marines Memo, subj: Recommendation for Administrative Separation in the case of [Petitioner], 2 Feb 04 (7) ,Marines CO Memo, subj: Notification of Separation Proceedings, 10 Feb 04 (8) Petitioner’s Memo, subj: Acknowledgement of my Rights to be Exercised or Waived during Separation Proceedings, 11 Feb 04 (9) Petitioner’s Hand-written statement, undated (10) Controlled Substance Abuse Counseling Center Director Memo, subj: Medical Officer’s Evaluation in the case of [Petitioner], 2 Mar 04 (11) CG Memo, subj: Recommendation for Administrative Separation in the case of [Petitioner], 19 Aug 04 (12) VA Medical Clinic Discharge Summaries (13) NDRB Discharge Review Decisional Document, Docket No. MD15-01223 (14) BCNR Advisory Opinion, 31 Mar 21 1.Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filedenclosure (1) with the Board for Correction of Naval Records (Board) requesting that hischaracterization of service be upgraded to honorable. 2.The Board reviewed Petitioner’s allegations of error or injustice on 10 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 ofPetitioner’s naval record, 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 oferror or injustice, finds as follows: a.Before applying to this Board, the Petitioner exhausted all administrative remediesavailable 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 towaive the statute of limitations and review Petitioner’s application on its merits. c.Petitioner enlisted in the Marine Corps at the age of 17 and began a period of active dutyservice on 18 December 2001. See enclosure (2). d.On 2 February 2003, Petitioner deployed with his unit to Kuwait as part of Operation IraqiFreedom. He reports that his was the first battalion to cross into Iraq, and that he was exposed to significant combat activity while serving in the province between March 2003 and September 2003. See enclosure (1). e.Petitioner reports that he began experiencing trauma symptoms due to his combatexperience upon his redeployment from Iraq. Specifically, he reports that he experienced nightmares and flashbacks which adversely affected his ability to sleep, as well as hypervigilance, irritability, disconnection and avoidance of crowds or public places. He also reports that he experienced “survivor guilt,” and had regrets about his actions in Iraq. See enclosure (1). f.On 8 January 2004, Petitioner used cocaine in violation of Article 112a, Uniform Code ofMilitary Justice, as identified by a urinalysis test. See enclosure (3). He was convicted by a summary court-martial for this offense on 5 April 2004, and his sentence included 30 days of confinement. See enclosure (4). g.On 30 January 2004, Petitioner was arrested by civilian authorities for driving under theinfluence of alcohol. See enclosure (3). h.By memorandum dated 2 February 2004, Petitioner’s platoon leader recommended thatPetitioner be separated from the Marine Corps under other than honorable (OTH) conditions due to his drug use. This memorandum, however, noted that Petitioner had been identified as an “above average performer” prior to his offense, and that he had been previously chosen as a future squad leader. Based on the platoon leader’s limited interacton with Petitioner, he believed Petitioner to be “a team player [who] would be an asset in [the unit’s] up-coming deployment to Iraq.” See enclosure (5). i.By memorandum dated 2 February 2004, Petitioner’s first sergeant also recommended thatPetitioner be separated from the Marine Corps due to his drug use. This recommendation noted that Petitioner had entered the Marine Corps on a drug waiver, so he understood the consequences of another incident of drug use. It also noted that Petitioner “seems to have given up on being a Marine even after he was hand picked to attend the Infantry Squad Leaders Course.” See enclosure (6). j.By memorandum dated 10 February 2004, Petitioner was notifed that he was beingrecommended for an administrative separation from the Marine Corps for misconduct due to drug abuse. See enclosure (7). k.By memorandum dated 11 February 2004, Petitioner waived his right to a hearing beforean administrative separation board after consulting with counsel. See enclosure (8). He did, however, submit a statement for consideration by the separation authority, acknowledging his mistake and requesting an opportunity to redeploy with his unit to correct it. See enclosure (9). l.On 1 March 2004, Petitioner was medically evaluated by licensed medical provider.Based upon the evaluator’s recommendation, Petitioner was referred for intensive outpatient substance abuse treatment. See enclosure (10). m.By memorandum dated 19 August 2004, the separation authority directed that Petitionerbe discharged from the Marine Corps under OTH conditions for misconduct due to drug abuse. See enclosure (11). n.On 27 August 2004, Petitioner was discharged from the Marine Corps under OTHconditions for misconduct due to drug abuse. See enclosure (2). o.In August 2011, Petitioner was diagnosed with combat-related post-traumatic stressdisorder (PTSD) by a mental health provider at a Department of Veterans Affairs (VA) clinic. This diagnosis was upgraded to chronic PTSD in May 2015. See enclosure (12). p.On 11 April 2016, the Naval Discharge Review Board (NDRB) unanimously voted todeny Petitioner’s request to upgrade his discharge. Petitioner claimed in his application to the NDRB that PTSD was a mitigating factor in his misconduct, but the NDRB found that the evidence did not show this to be a sufficiently mitigating factor to excuse Petitioner’s conduct or accountability for his actions. See enclosure (13). q.Petitioner contends that his drug use was due to self-medication for the symptoms of his undiagnosed and untreated PTSD condition that he developed due to his combat experiences in Iraq. He also contends that his PTSD symptoms have continued to adversely affect him after his discharge from the Marine Corps. Petitioner asserts that he has been clean since seeking treatment in 2015, and that he now works as a truck driver for a construction company while pursuing certification in heating, ventilation, and air conditions (HVAC) installation and repairs. See enclosure (1). r. In accordance with 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. The AO found Petitioner’s contention that he developed PTSD as a result of the traumatic events he experienced while deployed in Iraq to be credible. It concluded that the preponderance of objective evidence established that Petitioner was diagnosed with PTSD after his discharge from the Marine Corps, that he suffered from PTSD symptoms during his military service, and that his in-service misconduct could be attributed to PTSD. See enclosure (14). MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that partial relief is warranted in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon his PTSD condition, the Majority reviewed Petitioner’s application in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon Petitioner’s misconduct. The Majority also gave special consideration to the fact that Petitioner was diagnosed with combat-related PTSD by VA-affiliated mental health providers. In this regard, the Majority did not doubt that Petitioner developed PTSD as a result of his combat experience in Iraq. The Majority was less certain, however, that Petitioner’s misconduct was the result of his self-medication for his PTSD symptoms because Petitioner entered the Marine Corps on a drug waiver and had admitted to significant drug use prior to entering the Marine Corps. The Majority was therefore less certain about whether Petitioner’s misconduct was attributed to his PTSD condition, or rather a continuation of a habit that pre-existed Petitioner’s PTSD condition. Regardless, however, the Majority considered Petitioner’s PTSD condition and the effect that it may have had upon his misconduct as a potentially mitigating factor under the totality of the circumstances, as discussed below. 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 Majority 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 Majority considered, among other factors, Petitioner’s meritorious service to our Nation in combat, which by all accounts was worthy of recognition as reflected by his selection prior to his misconduct for elevation to squad leader; that Petitioner developed PTSD as the result of his combat exposure, which went untreated and continued to adversely affect him for many years; the possibility that Petitioner’s misconduct may have been mitigated by his PTSD condition as a self-medicating technique; Petitioner’s contention that he has sought treatment and been sober since 2015; the relatively minor nature of the misconduct for which Petitioner was discharged; the character statements provided by Petitioner attesting to his character and the effect of his combat experience; that Petitioner appears to have become a productive member of society despite the stigma of his OTH discharge; 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. Regardless of whether his misconduct was the result of his PTSD condition or a continuation of conduct that existed prior to this condition, the Majority found that the mitigating circumstances outweighed the minor misconduct for which Petitioner was discharged. Additionally, the Majority believed it to be unlikely that Petitioner would have been discharged under OTH conditions under similar circumstances today. The Majority considered whether an upgrade of Petitioner’s characterization of service to fully honorable was warranted under the totality of the circumstances, but determined that the mitigating circumstances did not so substantially outweigh Petitioner’s misconduct to warrant such relief. Although not specifically requested by Petitioner, the Majority also determined that his narrative reason for separation should be changed in the interests of justice to avoid future negative implications from his naval record. MAJORITY RECOMMENDATION: 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 the narrative reason for his separation was “Secretarial Authority”; that his separation authority was “MARCORSEPMAN 6214”; and that his SPD code was “JFF1.” That no further changes be made to Petitioner’s naval record. That a copy of this report 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 determined that full relief is warranted in the interests of justice. The Minority also applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his misconduct in accordance with references (b) – (d), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). Like the Majority, the Minority had no doubt that Petitioner developed PTSD as a result of his combat exposure in the Marine Corps. Unlike the Majority, however, the Minority, applying liberal consideration in accordance with reference (d), found sufficient evidence to conclude that Petitioner’s misconduct was substantially mitigated by this condition. Given this determination and the fact that Petitioner almost certainly would not have been discharged under OTH conditions under similar circumstances today, the Minority found that the mitigating factors significantly outweighed the very minor misconduct for which Petitioner was discharged. Accordingly, the Minority determined that Petitioner’s characterization of service should be upgraded to fully honorable. MINORITY RECOMMENDATION: In view of the above, the Minority 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 “Honorable”; that the narrative reason for his separation was “Secretarial Authority”; that his separation authority was “MARCORSEPMAN 6214”; and that his SPD code was “JFF1.” That Petitioner be issued an Honorable Discharge certificate. That no further changes be made to Petitioner’s naval record. That a copy of this report of proceedings shall 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 theforegoing 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. 5/14/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MINORITY Recommendation (Full Relief – Upgrade to Honorable) 6/15/2021 Assistant General Counsel (M&RA)