Docket No: 4708-20 Ref: Signature Date Docket No: 4708-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER XXX XX USMC Ref: (a 10 U.S.C. &1552 (b) 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 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 this Board requesting that his other than honorable (OTH) discharge be upgraded to honorable character of service. Enclosures (1) and (2) apply. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 18 November 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, and 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. 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. Petitioner enlisted in the Marine Corps and began a period of active duty on 4 February 1983. On 29 November 1984, Petitioner received non-judicial punishment (NJP) for failure to go at the time prescribed to his appointed place of duty. On 3 June 1985, after receiving a psychiatric evaluation, Petitioner was diagnosed as suffering from an antisocial personality disorder and recommended for administrative separation. On 11 June 1985, Petitioner’s Commanding Officer (CO) issued a letter of counseling stating in part, Petitioner will be retained in the Marine Corps; deficiencies in performance identified and recommendation for corrective action provided. The record reflects that Petitioner was arrested for driving under influence (DUI), specifics of the arrest were not provided in the record. As a result of the arrest, on 3 February 1986, Petitioner received his second psychiatric evaluation regarding drug and alcohol abuse and was diagnosed as suffering from alcohol abuse and antisocial personality disorder. On 30 April 1986, Petitioner received his second NJP for wrongful use of marijuana. Subsequently, Petitioner was notified that he was being recommended for administrative discharge from the naval service because of misconduct due to drug abuse. After consulting with counsel, Petitioner chose not to exercise his right to present his case to an administrative discharge board (ADB). The separation authority directed administrative discharge from the naval service with an OTH characterization of service by reason of misconduct due to drug abuse. On 3 June 1986, Petitioner was so discharged. d. Petitioner contends that he was promised an upgrade of his character of service by his First Sergeant, and that his demise started when a Sergeant and the Sergeant’s wife got into a fight and came into their home while they were fighting. Petitioner states that the sergeant’s wife came to their home and he followed her breaking down the door of his home and was assaulting his wife as well. Petitioner states he called the civilian police and was told it was a Marine Corps problem, and when he reported it to the Marine Corps, he was told it was a civilian problem. Petitioner further states, “It all went away, except for his code red, after that he was a marked Marine.” Everyone stood up for the Sergeant and no one stood up for him or his wife. He was forced to send his wife back to his parents’ home. While he was on leave he was under so much stress, he smoked weed. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request merits partial relief, given the totality of circumstances, including the results of the psychiatric evaluations Petitioner underwent while on active duty, which diagnosed Petitioner with antisocial personality disorder, and recommended an administrative separation early on in Petitioner’s enlistment (Petitioner’s command declined to act on this recommendation at the time). Additionally, the Board reviewed his application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose of the Under 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 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 as a result of such convictions,” 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, to include, but not limited to: positive or negative post-conviction conduct, acceptance of responsibility, remorse, or atonement for misconduct, the length of time since misconduct, the severity of the misconduct, whether misconduct may have been youthful indiscretion, character references/letters of recommendation, meritorious service in government or other endeavors, and/or job history. The Board, in its review of Petitioner’s entire record and application, carefully weighed all potentially mitigating factors. The Board notes Petitioner’s psychiatric evaluations; the Board also noted Petitioner’s disciplinary infractions and does not condone his misconduct, which subsequently resulted in his OTH characterization of service. However, in light of reference (b), and applying liberal consideration, the Board determined Petitioner’s atonement warranted clemency and concluded that the Petitioner’s discharge be upgraded to general (under honorable conditions) character of service. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) indicating that on 3 June 1986, Petitioner was discharged with a general (under honorable conditions) character of service. 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 23 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy.