Docket No: 4568-20 
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 Post Traumatic Stress Disorder”   
        (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) USD 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)  USECDEF Memo of 25 Jul 2018 “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 with attachments 
       (2) Case Summary 
       
1.  Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with a request to upgrade his characterization of service.  Enclosures (1) and (2) apply.   
 
2.  The Board, consisting of , reviewed Petitioner's petition containing certain allegations of error and injustice on 24 July 2020, 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, his medical records, applicable statutes, regulations, 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.  Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to review the application on its merits.   
 
b. Petitioner enlisted in the Marine Corps and began a period of active service on 1 October 1986.  In June 1987, a Navy Medical Officer diagnosed Petitioner as alcohol dependent.  On 21 August 1987, Petitioner completed approximately 43 days of Level III inpatient alcohol rehabilitation treatment.  Following his discharge, the Petitioner was provided with an aftercare plan.  On 25 September 1987, the Petitioner received an Administrative Remarks (Page 11) counseling warning documenting an alcohol-related incident.  The Page 11 expressly warned the Petitioner that failure to take corrective action may result in administrative separation or judicial proceedings.   
 
c. In November and December of 1987, the Petitioner underwent treatment from a clinical psychologist (CP).  The CP diagnosed Petitioner with a long-standing character and behavioral disorder which did not require and would not benefit from psychiatric hospitalization.  The CP determined that Petitioner was not mentally ill and was responsible for his own behavior.  The CP strongly recommended that Petitioner be processed for administrative separation by reason of unsuitability.  However, Petitioner’s command did not take steps at such time in late 1987 to process him for administrative separation.  
 
d. On 6 January 1988, the Petitioner received non-judicial punishment (NJP) for two alcohol-related incidents: underage drinking and reckless driving on base.  On 15 June 1988, the Petitioner received NJP for three alcohol-related specifications of violating a lawful general order.  On 20 June 1988, the Petitioner received a Page 11 counseling warning documenting his alcohol-related incidents and that failure to take corrective action may result in administrative separation or judicial proceedings.  On 12 August 1988, the Petitioner received NJP for breaking restriction.  On 28 August 1988, the Petitioner commenced a period of unauthorized absence (UA) that lasted twenty-six days.  
 
e. On 28 November 1988, pursuant to his guilty pleas, the Petitioner was convicted at a Special Court-Martial (SPCM) of two alcohol-related specifications of violating a lawful general order, and two specifications of UA.  As punishment, Petitioner received a reduction to the lowest enlisted rank (E-1), forfeitures of pay, and confinement for three months. 
 
f. Following his release from confinement, on 14 March 1989 the Petitioner was originally notified that he was being processed for an administrative discharge by reason of alcohol rehabilitation failure.  However, the Petitioner was re-notified on 4 April 1989 that he was instead being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct.  On 11 April 1989, the Petitioner consulted with counsel and elected to request an administrative separation board.  On 10 May 1989, the Petitioner subsequently waived his right to an administrative separation board.  Ultimately, on 24 May 1989, the Petitioner was discharged from the Marine Corps for a pattern of misconduct with an under other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code.  The Board specifically noted on Petitioner’s DD Form 214 that the narrative reason for separation was Misconduct - Pattern of Misconduct and the separation code was HKA1, which corresponds to an administrative separation case involving a pattern of misconduct with a board waiver.            
 
g. On 10 October 2019, the Department of Veterans Affairs (VA) granted Petitioner service-connection for treatment purposes only for:  (1) bipolar disorder, type I with alcohol use disorder, and insomnia disorder; (2) COPD with sleep hypoxia, bronchitis, pleural fibrosis, and pleurisy; and (3) lumbrosacral strain with mild thoracic scoliosis.   

h. In short, Petitioner contended that he was suffering from a service-connected mental health conditions.  The Petitioner argued that the behaviors leading up to his discharge originated from an incident involving his lungs that caused extreme pain, stress, and duress over an extended period of time.  The Petitioner essentially argued that the Board must view his mental health conditions as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service.    
 
CONCLUSION: 
 
Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief.  Additionally, the Board reviewed his application under the guidance provided in references (b) through (e).  Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. 
 
The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in reaching fair and consistent results in these difficult cases.”  The memorandum describes the difficulty veterans face on “upgrading their discharges based on claims of previously unrecognized” Mental Health Conditions.  The memorandum further explains that because Mental Health Conditions were not previously recognized as a diagnosis at the time of service for many veterans, and diagnoses were often not made until after service was completed, veterans were constrained in their arguments that Mental Health Conditions should be considered in mitigation for misconduct committed, or were unable to establish a nexus between a Mental Health Condition and the misconduct underlying their discharge.  Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform veterans about how to achieve relief with these types of cases.     
 
Similarly, the intent of the Under Secretary of Defense Memorandum (reference (e)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. 

In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed mental health conditions mitigated the misconduct used to characterize his discharge.  The Board also concluded that the Petitioner’s mental health-related symptoms as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct.  With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions, and that a discharge upgrade to a general (under honorable conditions) characterization and no higher under these circumstances is appropriate.   
 
In view of the foregoing, the Board finds the existence of an injustice warranting the following partial corrective action. 
 
RECOMMENDATION: 
 
That Petitioner be issued a new DD Form 214 indicating that on 14 May 1989 he was discharged with a general (under honorable conditions) character of service, MARCORSEPMAN, par 6210.3 separation authority, HKA1 Separation code, RE-4 reenlistment code, Misconduct – Pattern of misconduct narrative reason for separation.  
 
That no further changes be made to Petitioner’s record. 
 
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 or about 24 June 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 

7/31/2020