From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO , Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 (2) Advisory Opinion 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 establish Petitioner’s eligibility for a disability discharge and upgrade to his characterization of service. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 14 January 2021, 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 the naval records, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel 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). 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. Petitioner entered active duty with the Marine Corps in July 2007 and served without incident until September 2009. At that time, he was not recommended for promotion due to lack of leadership and pending legal action. On 25 February 2010, Petitioner received non-judicial punishment for unauthorized absence and an orders violation. He was evaluated for alcohol abuse shortly afterwards and participated in out-patient alcohol rehabilitation treatment. Around the same time, Petitioner self-referred for mental health symptoms after learning of deaths of hometown friends and experiencing anger and other physical disability issues related to his grief. After initially being diagnosed with Major Depression, he was diagnosed with a personality disorder in September 2010 but continued to receive treatment for his mental health related symptoms. Petitioner then commenced a period of unauthorized absence on 4 November 2010 that lasted until 2 December 2010. During this period of unauthorized absence, Petitioner spoke to his mental health provider and reported being asymptomatic of previous mental health related symptoms. However, after reporting back to duty and being punished with non-judicial punishment, Petitioner’s mental health related symptoms returned. Consequently, he was diagnosed with an Adjustment Disorder with anxiety, depression, and occupational problems. As Petitioner neared his discharge date from the Marine Corps, his mental health symptoms again improved resulting in no diagnosis except personality disorder. On 2 May 2011, Petitioner discharged for misconduct with an Other than Honorable characterization of service. c. The Naval Discharge Review Board denied Petitioner request for an upgrade to his characterization of service in January 2020 after concluding that Petitioner’s mental health diagnosis did not sufficiently mitigate his misconduct. d. In correspondence attached at enclosures (2) and (3), the office having cognizance over Petitioner’s request to be change his narrative reason for separation to disability determined that the evidence does not support his request. The opinion states there was insufficient evidence to support a finding that Petitioner was unfit for continued naval service at the time of his discharge based on the medical evidence. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. Specifically, the Board determined that after applying liberal consideration to the facts of the case, clemency in the form of changing his narrative reason for separation to Secretarial Authority is supported by the evidence. While the Board concluded that his misconduct was too serious to merit an upgrade to his characterization of service, they determined that some form of clemency was appropriate based on the mental health symptoms he exhibited at the time of his misconduct. Despite determining some level of clemency was justified, the Board found that an upgrade to Petitioner’s characterization was not supported by the evidence. After applying liberal consideration to the circumstances of Petitioner’s case, the Board found that the seriousness of his misconduct outweighed the mitigation offered by his mental health condition at the time of his discharge. In making this finding, the Board concurred with the NDRB rationale in denying Petitioner’s application for an upgrade. In addition to the minor misconduct that resulted in his first non-judicial punishment and counsellings in Petitioner’s military record, the Board concluded his unauthorized absence from 4 November 2010 until 2 December 2010 was sufficiently serious misconduct to support the Other than Honorable characterization of service in spite of liberally considering his mental health condition. Under the Uniform Code of Military Justice, Petitioner’s extended period of unauthorized absence was considered an aggravating form of unauthorized absence due to the extended length of his absence and could have resulted in confinement for six months and forfeitures of two-thirds pay for six months had Petitioner’s command pursued a trial by court-martial. Because of this, the Board felt Petitioner already received the benefit of substantial mitigation when the command chose to punish him with non-judicial punishment in lieu of trial by court-martial. Further, the Board deliberated on the negative impact on good order and discipline Petitioner’s extended absence had on his command. After considering all of these factors, the Board determined the totality of Petitioner’s misconduct was too serious to be mitigated by his mental health condition in order to justify upgrading the characterization of service. In their opinion, Petitioner’s documented misconduct still constitutes a significant departure from the conduct expected of a Marine even after applying liberal consideration to the facts of his case and considering his mental health condition. In conclusion, the Board determined that changing his narrative reason for separation from misconduct to Secretarial Authority was sufficient mitigation based on his mental health symptoms at the time. Regarding Petitioner’s request for a disability discharge, the Board concluded insufficient evidence exists to support relief. In order to qualify for military disability benefits through the Disability Evaluation System with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition. Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member. In Petitioner’s case, the Board agreed with the advisory opinion that he was not suffering from a qualifying disability condition based on his personality disorder diagnosis at the time of discharge from the Marine Corps. In the Board’s opinion, the preponderance of the evidence supports his personality disorder diagnosis based on Petitioner’s pattern of behavior that was consistent with his preservice history that included gang related behavior. Further, the Board concluded Petitioner’s mental health symptoms were, more likely than not, due to an adjustment disorder vice a compensable disability condition. The Board relied on medical evidence that documented his mental health improvement while he was in an unauthorized absence status and as Petitioner anticipated his discharge from the Marine Corps. Since neither personality disorder nor adjustment disorder were compensable disability conditions under the Disability Evaluation System, the Board concluded Petitioner was not eligible for a disability discharge. In addition, the Board also concluded Petitioner was not eligible for a disability discharge since he was discharged for misconduct that resulted in an Other than Honorable characterization of service. The Board found no evidence Petitioner was not mentally responsible for his misconduct, therefore, they found that the basis for his administrative separation was supported by the record of misconduct. Since military disability regulations directed misconduct related administrative processing to all other discharge processing, including disability processing, the Board determined Petitioner was properly discharged for misconduct and his narrative reason for separation remains appropriate. For this reasons, the Board also did not find appropriate Petitioner’s alternative request to be discharge for personality disorder if the Board concluded a disability discharge was not supported by the evidence. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing Petitioner’s narrative reason for separation to “secretarial authority,” SPD code to “JFF”, and separation authority to “MARCORSEPMAN 6214.” Petitioner will be issued a new DD Form 214 reflecting the changes directed 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 Regulation, 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.