DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5954-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER USMC, XXX-XX- 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 PTSD,” of 3 September 2014 (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) PDUSD memo, “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,” of 25 August 2017 (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 Encl: (1) DD Form 149 with attachments 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 reflect a general (under honorable conditions) or honorable characterization of service. 2. The Board, consisting of , , and , reviewed Petitioner’s allegations of error and injustice on 14 July 2021 and pursuant to its regulations determined 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 considered the 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. Petitioner entered a period of active duty in the Marine Corps on 13 October 1969. He served as a rifleman with the military occupation specialty code of 0311. d. Petitioner participated in multiple counterinsurgency operations in the Republic of Vietnam from approximately 5 June 1970 to 8 March 1971. Petitioner’s service history is significant for having been awarded the Vietnamese Service Medal, Vietnamese Campaign Medal with device, and the Combat Action Ribbon. e. On 18 June 1971 Petitioner was triaged by the Division psychiatrist and diagnosed as “presenting a picture of depression, moderate, but not suicidal.” f. On 2 August 1971 Petitioner received nonjudicial punishment (NJP) for a one day period of unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ). g. Petitioner received a second NJP on 10 August 1971 for a two and a half hour UA in violation of Article 86, UCMJ. h. On 13 August 1971 Petitioner requested and was granted an exemption under ALMAR 77.1 1 ALMAR 77 pertained to the DoD implemented drug amnesty program initiated in Vietnam during June of 1971. 2 Petitioner’s service record is incomplete and does not contain the SCM charges. However, the Board relies on a presumption of regularity to support the official actions of public officers, and i. On 12 October 1971 Petitioner pled guilty for violation of the Health and Safety Code, section 11531, for the transportation and furnishing of marijuana. j. Petitioner entered into a 17 day period of UA from 2 November 1971 to 19 November 1971. k. On 13 December 1971 Petitioner was notified of administrative separation processing by reason of misconduct due to conviction by civil authorities. l. On 14 December 1971 Petitioner was convicted by summary court martial (SCM). 2 in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. Based on Petitioner’s notice of administrative separation processing, civilian conviction, and 17 day period of UA, he presumably was charged with violating Articles 112a and 86, UCMJ. m. On 18 February 1971 an administrative discharge board was convened. Petitioner requested to be retained. The members recommended Petitioner be discharged with an “undesirable discharge for misconduct for the specific basis of civilian conviction.” n. Petitioner was discharged on 7 April 1972 with an other than honorable characterization of service. o. A civilian provider diagnosed Petitioner with PTSD and prescribed him therapeutic cannabis on 16 November 2017. p. Petitioner contends that after nine months in Vietnam he developed PTSD and began using marijuana to self-medicate. He states that on 21 September 1971 an undercover, civilian police officer posing as a veteran asked Petitioner to help him buy cannabis because he was also suffering from PTSD. Petitioner introduced the police officer to the women who sold him marijuana and was arrested. He pled guilty to the transportation and furnishing of marijuana in violation of section 11531 of the Health and Safety Code for the state of . Since discharge, Petitioner has struggled with relationships, employment, and homelessness. He states his service was exemplary prior to the onset of PTSD and he still suffers from PTSD today. Petitioner further states he is employed as a coach driver for a horse and carriage service in Montreal. q. In support of his application, Petitioner provided medical records documenting a diagnosis of PTSD and three character references on his behalf. r. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 25 April 2021. The AO noted that Petitioner was exposed to constant “unrestrained violence,” numerous patrols and listening posts, pinned down during firefights, carried “wounded, maimed, and limbless friends to medevac helicopters,” and survived a particularly traumatic friendly fire incident in which helicopter gunships hit their position with rockets and grenades, killing and wounding many of his friends. The AO concluded that there is sufficient objective and indirect evidence that Petitioner developed PTSD as a result of his exposure to sustained combat operations during his military service, and that his in-service misconduct was mitigated by his experience of PTSD. CONCLUSION: The Board reviewed Petitioner’s application under the guidance provided in references (b) through (d). Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants full relief and his characterization of service should be corrected to reflect honorable. The Board, applying liberal consideration and relying on the AO, determined there was sufficient evidence to support a finding that Petitioner suffered from a post-combat deployment mental health condition at the time of discharge. The Board further found a nexus between Petitioner’s condition and misconduct and that the condition mitigated the discharge. In its deliberations, the Board noted that Petitioner was approached by an undercover police officer approximately five weeks after being granted a drug use exemption under ALMAR 77 and notwithstanding this incident, had no previous record of transporting or furnishing marijuana. Although the Board does not condone Petitioner’s misconduct, it was non-violent in nature and seemingly occurred in an attempt to self-medicate what appears to have been a debilitating condition. In addition to applying liberal consideration to Petitioner’s mental health condition and the effect that it may have had upon his conduct, the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Majority considered, among other factors, that Petitioner suffered from undiagnosed and untreated PTSD during his naval service which mitigated the misconduct for which he was separated; Petitioner’s credible personal statement describing his symptoms and assertion that he has sought and received mental health treatment from his civilian provider to rehabilitate himself; volunteered to serve in the Marines at the age of 19; Petitioner’s combat history; relative youth and immaturity at the time of his misconduct; and the passage of time of over 49 years since Petitioner’s discharge. Furthermore, in the interests of justice and in light of the potential for future negative implications, the Board further determined Petitioner’s narrative reason for separation, separation authority, and separation code should be changed to “Secretarial Authority.” RECOMMENDATION: In view of the above, the Board directs the following corrective action: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “Honorable,” that the narrative reason for his separation was “Secretarial Authority,” that his separation authority was “MARCORSEPMAN 6214,” and that his separation code was “JFF1.” That Petitioner be issued an Honorable Discharge Certificate. That no further corrective action should be taken. That a copy of this report of proceedings be filed in Petitioner’s naval record. 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. 7/19/2021 Executive Director