Docket No. 4775-20
Ref: Signature Date


Dear   
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.    
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 11 February 2021.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies.  In addition, the Board considered the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 13 December 2020 and Director CORB letter 1910 CORB: 001 of 15 December 2020 along with your response to the opinions. 
 
A review of your record shows that you entered active duty with the Marine Corps in February 2007.  You served without incident until August 2009 when non-judicial punishment was imposed on you for assault.  However, during this period, you also successfully completed deployments to Kuwait, Iraq, and Afghanistan.  During your deployment to , you were in a vehicle that was struck by an Improvised Explosive Device (IED) on 26 March 2012.  Despite the incident involving the IED, you continued to perform well professionally until you were involved in another assault against a 61-year-old retired navy officer on 12 May 2015.  This misconduct resulted in your referral to a General Court-Martial where you were convicted on 12 April 2016 for Assault and Drunk and Disorderly conduct.  You were sentenced to a reduction in paygrade to E-1, six months of confinement, and a Bad Conduct Discharge (BCD).   
 
While you were serving your confinement sentence, you reported Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) symptoms.  A 27 July 2016 medical statement from a Nurse Practitioner opined that you likely suffered from PTSD prior to committing the 2015 assault and that your condition was a likely contributing factor to your misconduct.  On 29 March 2017, the Naval Clemency and Parole Board granted you clemency by upgrading your BCD to an Other than Honorable discharge.  You were discharged with an OTH on 15 November 2017 after appellate review of your case was completed.  Post-discharge, the Department of Veterans Affairs assigned you a 100% disability rating for your PTSD and you were denied a Purple Heart Medal for your IED related injuries on 26 March 2012. 
 
The Board carefully considered your arguments that you deserve an upgrade to your characterization of service, a Purple Heart medal, and a disability discharge or retirement for your PTSD and TBI conditions.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case. 
 
First, the Board determined that your OTH characterization of service remains appropriate.  In making this determination, the Board applied liberal consideration to the facts of your case as required by existing Department of Defense policy after concluding a nexus likely existed between your 12 May 2015 misconduct and your diagnosed PTSD condition.  However, despite applying liberal consideration, the Board concluded that your mental health condition was insufficient to further mitigate the seriousness of the assault your committed to merit an upgrade from an OTH.  Court records document that you assaulted the 61-year old victim in your case by pushing him into a tree and punching him in the face until he lost consciousness.  The victim suffered bleeding in the brain and multiple facial fractures as a result of your attack.  In the Board’s opinion, this attack on an elderly victim that resulted in serious head injuries warranted the BCD awarded at the General Court-Martial.  Aside from your drunk and disorderly charge, your assault was serious enough misconduct that could have caused death or permanent injuries to the victim.  Based on this finding, the Board concluded the BCD sentence was supported by the preponderance of the evidence.  The Board noted that an appellate review of your criminal case also concluded no error existed in your punitive discharge sentence.  After concluding the BCD sentence was supported by the evidence, the Board considered the fact you already received the benefit of mitigation for your mental health condition when the Naval Clemency and Parole Board upgraded your characterization of service from BCD to OTH.  As a result, the Board reached the conclusion that a further upgrade was not supported by the evidence.  As explained earlier, the Board felt your assault was sufficiently serious to merit a BCD.  Therefore, the fact you were upgraded to an OTH for your misconduct reflects that you already received the benefit of significant mitigation of your misconduct due to your mental health condition.  When liberally weighing the seriousness of your misconduct against the mitigation offered by your mental health condition, the Board concluded no further upgrade to your characterization of service was warranted.  In making their decision, the Board also considered the fact you are receiving treatment and compensation from the Department of Veterans Affairs despite your OTH discharge and enjoy a stable post-discharge family and employment history.   
 
Second, based on their finding that your OTH remains appropriate, the Board also concluded that you do not qualify for a Purple Heart Medal.  Title 10, United States Code, Section 6249 stipulates that "no medal, cross, bar, or associated emblem or insignia may be awarded or presented to any individual if the service after the distinguish act or period has not been honorable."  Despite your arguments that this section was misapplied by the Marine Corps since a Purple Heart doesn’t require a service member to take a particular action and was not specifically identified under Chapter 567 of Title 10, the Board found that it was applicable.  The Board considered the plain language of the statute that prohibits the issuance of any medal to an individual if their service after the act or period that merits the medal is not honorable.  The Board concluded that Congress could have limited the medals covered by Section 6249 but chose not to do so.  Further, the Board disagreed with your assertion that earning a Purple Heart Medal does not require a distinguishing act.  In their opinion, suffering a combat related injury while serving in a combat zone is a distinguishing act since it requires a service member to expose themselves to hostile fire to receive it.  Therefore, in applying Section 6249 to the facts of your case, it appears you qualified for the Purple Heart Medal on 26 March 2012 when you suffered injuries from the IED but your subsequent discharged from the Marine Corps with an OTH disqualified you from receiving the medal since section 6249 specifically prohibits the issuance of any medal under those circumstances.   
 
Third, the Board determined you do not qualify for referral to the Disability Evaluation System, change to your reason for separation to disability, or placement on the disability retirement list.  While the Board acknowledged that you likely suffered from mental health symptoms at the time you committed the misconduct that formed the basis for your discharge from the Marine Corps, the Board concluded you were ineligible for disability processing due to your OTH discharge based on your court-martial conviction.  In reviewing your case, the Board concluded the preponderance of the evidence supports a finding that you were criminally responsible for your misconduct despite your mental health condition.  The Board relied on the fact you were convicted for your misconduct and your conviction was upheld upon appellate review in making this finding.  Therefore, since your court-martial findings and sentence were upheld on appeal, the Board determined the Marine Corps appropriately discharged you for your misconduct.  In making this finding, the Board took into consideration that military disability regulations direct misconduct processing that could result in a punitive or OTH discharge to supersede disability processing.  So even if your disability conditions merited referral to the Disability Evaluation System, your court-martial conviction and discharge for misconduct would have superseded any disability processing.  Further, the Board noted that court-martial testimony and evidence does not support your assertion that the Navy failed to properly diagnose and treat your mental health condition.  There was significant evidence of your fitness for continued naval service based on fitness reports and good military character evidence presented at your court-martial.  In the Board’s opinion, the preponderance of the evidence shows that you were performing well as a Marine despite any mental health symptoms that existed at the time.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
Regarding your arguments of ineffective assistance of counsel due to his failure to argue PTSD as a defense at your court-martial, the Board determined the preponderance of the evidence did not support a finding that he was ineffective.  In making their findings, the Board relied on the rationale of the United States Navy-Marine Corps Court of Criminal Appeals.  As pointed out in the court decision, you had no PTSD diagnosis at the time of trial.  In addition, you introduced four witnesses at trial and admitted 16 affidavits on your good military character and performance.  None of those witnesses or affidavits mentioned observing any of PTSD symptoms or behavior consistent with PTSD.  Therefore, the Board concluded the preponderance of the evidence does not support a finding that your defense counsel failed to exercise due diligence in representing you.        
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.   
 
Sincerely,