BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4609-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER 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,” of 3 September 2014 (Hagel Memo) (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,” of 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,” of 25 August 2017 (Kurta Memo) (e) USECDEF 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 (Wilkie Memo) Encl: (1) DD Form 149 with attachments (2) Case summary 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to place him on the disability retirement list. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 20 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 Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). Additionally, the Board also considered an advisory opinion (AO) furnished by a qualified mental health provider. 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 interests of justice to review the application on its merits. c. The Petitioner enlisted in the Marine Corps and began a period of active service on 15 October 2008. Petitioner’s pre-enlistment physical and medical history both noted no psychiatric or neurologic conditions or symptoms. d. On 30 November 2011, Petitioner was issued a “Page 11” counseling warning (Page 11). The Page 11 informed Petitioner that he would not be promoted to the rank of Corporal (E-4) for the first quarter of fiscal year 2011 and January 2011 because he neither possessed nor demonstrated the qualities representing a Marine non-commissioned officer. The Page 11 stated that Petitioner did not adhere to the Marine Corps policy on drug use and that while pending legal action he was ineligible for promotion. Petitioner did not make a rebuttal statement to the Page 11. e. On 20 January 2011 Petitioner underwent a PTSD evaluation. The examining clinical psychologist (CP) diagnosed Petitioner with PTSD following his return from his Afghanistan deployment. The CP noted that Petitioner used “Spice” approximately fifteen (15) times after his deployment but not since he was charged with drug abuse. The CP noted that Petitioner chose to use Spice rather than request mental health treatment to address his symptoms, and that Petitioner was fully aware using Spice was illegal and in violation of the Marine Corps order expressly prohibiting the use of Spice. The CP opined that Petitioner’s combat experiences and PTSD diagnoses did not adversely affect his judgment regarding his decision to use Spice. f. On 3 May 2011 the Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to drug abuse based on his violation of the 27 January 2010 Marine Corps Forces Order 5355.1 by wrongfully possessing and using “Spice.” Petitioner consulted with counsel and elected his right to request an administrative separation board (Adsep Board). g. On 17 November 2011 an Adsep Board convened to hear Petitioner’s case. At the Adsep Board Petitioner was represented by a Marine Corps Judge Advocate. Following the presentation of evidence and witness testimony in the case, the Adsep Board members determined the Petitioner committed the misconduct as charged and recommended his separation from the Marine Corps with an other than honorable (OTH) characterization of service. Ultimately, on 23 January 2012 the Petitioner was discharged from the Marine Corps for misconduct with an OTH characterization of service and assigned an RE-4B reenlistment code. h. On 10 July 2019 the Naval Discharge Review Board (NDRB) granted Petitioner’s initial application for relief. In its rationale to upgrade Petitioner’s OTH discharge to a general (under honorable conditions) (GEN) characterization of service, the NDRB stated: In this case, the Applicant’s service was honest and faithful but significant negative aspects of the member's conduct or performance of duty outweighed the positive aspects of the member's service record. The Applicant's official military service record revealed a diagnosis of PTSD, coupled with additional post-service documentation provided by the Applicant, support the Applicant’s contention that his PTSD was a mitigating factor associated with his in-service misconduct. Moreover, the NDRB determined that the unique circumstances of this individual case, coupled with the documented PTSD diagnosis, and the Applicant's heroic and meritorious service in combat, warranted additional consideration in the determination of overall characterization of service…relief in the form of an upgrade in the characterization of service to General is warranted. Full relief to Honorable was not granted, because the NDRB did not consider the severity of the Applicant's PTSD sufficient to completely absolve the Applicant of his misconduct. i. At the time of Petitioner’s separation from the Marine Corps, his overall active duty trait average was 4.10 in conduct. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 4.0 in conduct/military behavior to be eligible and considered for a fully honorable characterization of service. j. In short, Petitioner contends that he was suffering from PTSD due to his deployment to in support of Operation Enduring Freedom. The Petitioner states that the deployment was much more traumatizing than he could have ever realized and that his combat experiences changed who he was to the very core. The Petitioner contends that his PTSD symptoms were due, in part, to being exposed to numerous IED explosions, small arms fire, and dead bodies as a result of combat. The Petitioner states that upon return from deployment he experienced nightmares, flashbacks, intrusive thoughts, insomnia, hypervigilance and paranoia, social withdrawal and isolation, disrupted interpersonal relationships, anxiety, depression, and that he resorted to self-medication with “Spice” to alleviate his psychological symptoms. Petitioner argues that PTSD was a causative factor for the behavior underlying his OTH discharge. k. As part of the review process, the BCNR Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO dated 14 April 2021. The MD initially observed that Petitioner’s in-service medical records include a February 2011 letter from the clinical psychologist at the Substance Abuse Rehabilitation Program, Naval Hospital, , who stated Petitioner was diagnosed with combat-related PTSD and had been in treatment for his PTSD. The MD also observed that the psychologist stated, in his opinion, the PTSD had not “adversely affected his judgment regarding his decision to use Spice.” The MD noted that Petitioner provided extensive clinical documentation of his combat related PTSD diagnosis and treatment with the , with records documenting the origin of his PTSD symptoms arising shortly after his return from deployment in 2010. The MD also noted that Petitioner’s post-discharge diagnoses also included major depression, recurrent, mild, and schizophrenia. The MD determined that Petitioner’s contention is supported by his treatment team at VAMC stating Petitioner was unable to work due to service-connected PTSD. Finally, the MD noted that the VA Benefits Summary stated Petitioner has service-connected PTSD with a 70% disability rating. The MD concluded by opining that the evidence supported Petitioner’s contention that he incurred service-connected PTSD and that Petitioner’s misconduct could be mitigated by his PTSD. CONCLUSION: Upon review and liberal consideration of all the evidence of record and in light of the favorable AO, the Board concluded that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in the Hagel, Kurta, and Wilkie Memos. Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. The Board concluded the preponderance of the evidence supports placing Petitioner on the Temporary Disability Retirement List (TDRL). In making this finding, the Board considered the PTSD diagnoses, his commanding officer’s recommendation to suspend his administrative separation from the Marine Corps, and the favorable AO conclusion that his PTSD could mitigate his misconduct. These factors led the Board to conclude that it was in the interests of justice to place Petitioner on the TDRL for his PTSD condition with a 50% rating and to allow the PEB to evaluate him further to determine an appropriate disposition of his case. While the Board considered Petitioner’s combined 70% rating, they determined insufficient evidence existed to be able to distinguish his level of PTSD impairment based only on a combined rating. Therefore, the Board concluded it was appropriate to assign him a 50% rating consistent with 38 C.F.R. § 4.129. The Board also considered whether an upgrade to Petitioner’s characterization of service was supported by the evidence. In keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board felt that Petitioner’s PTSD mitigated the misconduct used to characterize his original OTH discharge. The Board concluded that the Petitioner’s PTSD-related conditions and/or symptoms as possible causative factors in the misconduct underlying his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct. However, notwithstanding the recommended corrective action below, the Board did not find a material error or injustice with the Petitioner’s upgraded GEN characterization of service and was not willing to grant a full upgrade to an honorable discharge. The Board did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. Additionally, the Board determined that Marines should receive no higher discharge characterization than is due. The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance greatly outweighed the positive aspects of his military record even under the liberal consideration standard for mental health conditions. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate. The Board also concluded that the evidence of record did not demonstrate that Petitioner was not mentally responsible for his conduct or that he should not be held accountable for his actions. Lastly, in light of the Wilkie Memo, the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the Petitioner merits a GEN characterization of service and no higher. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner should be placed on the Temporary Disability Retirement List for PTSD, VASRD Code 9411, with a 50% disability rating effective 28 January 2012. Petitioner will be granted a physical examination and have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210. All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review. Petitioner will be issued a new DD Form 214 reflecting the changes recommended by the Board. 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. 5/22/2021