DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 

Docket No: 6007-20  
Ref: Signature Date  

From:  Chairman, Board for Correction of Naval Records  
To:  Secretary of the Navy  

Subj: REVIEW OF NAVAL RECORD OF 


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 PostTraumatic Stress Disorder,” of 3 September 2014 (HagelMemo) 
     (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 orTBI,” of 24 February2016 
     (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 SexualHarassment,” of25 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 upgrade his characterization of service and to make other conforming changes to his DD Form 214. 

2.  The Board, consisting of reviewed Petitioner's allegations of error and injustice on 28 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 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 originally enlisted in the Marine Corps and began a period of active service on 14 January 2003.  Petitioner’s pre-enlistment physical on 7 November 2002 and corresponding medical history noted no psychiatric or neurologic conditions or symptoms. Petitioner reenlisted on 17 August 2007. 

d. On 11 July 2011 Petitioner submitted a voluntary written request for an administrative discharge under other than honorable conditions in lieu of trial by court-martial for two specifications of unauthorized absence lasting 28 days and 8 days, respectively, four specifications of failing to obey a lawful order, and two specifications of the wrongful use of methamphetamine.  Prior to submitting this discharge request, the Petitioner conferred with a qualified military lawyer, at which time he was advised of his rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, Petitioner was spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  Ultimately, on 9 August 2011 Petitioner was discharged from the Marine Corps with an other than honorable (OTH) characterization of service and assigned an RE-4B reentry code. Additionally, because Petitioner was serving in a paygrade above E-3 at the time and separated with an OTH characterization of service, he was automatically administratively reduced to paygrade E-3 effective upon his separation date of 9 August 2011. 

e. On 10 July 2019 the Naval Discharge Review Board (NDRB) denied any and all relief and determined that Petitioner’s discharge was proper as issued and no change was warranted. 

f. In short, Petitioner contends that he was suffering from PTSD and depression arising out of his combat-related experiences in Iraq, compounded by his child’s disabilities and untimely death, and further exacerbated by his divorce.  Petitioner further argues that PTSD and his mental health conditions were causative and/or mitigating factors for the behavior underlying his separation and OTH discharge. Petitioner also contends he received ineffective assistance of counsel (IAC) in conjunction with his discharge request. 


g. As part of the review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed Petitioner’s contentions and the available records and issued an AO dated 17 April 2021.  The MD initially observed that from June 2006 to August 2011, Petitioner’s in-service record contained numerous military mental health encounters to include psychiatric hospitalizations, detailing evaluations and treatment for adjustment disorder, PTSD, major depression, with psychiatric admission in May 2007 to Naval Medical  for suicidal ideation upon learning of his wife’s affair during his Iraq deployment, thus exacerbating his PTSD symptoms with severe depressive symptoms. The MD further noted that Petitioner’s PTSD and major depression diagnoses were further confirmed in his 19 August 2020 VA C&P Disability Evaluation by a clinical psychologist who diagnosed Petitioner with service-connected PTSD, major depression, other stimulant use disorder, and alcohol abuse (in remission).  The MD concluded by opining that there was sufficient objective direct and indirect evidence that Petitioner exhibited symptoms and behaviors indicative of PTSD and major depression during his military service and that Petitioner’s misconduct may be mitigated by his mental health conditions.  

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. 

In keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board felt that Petitioner’s PTSD and major depression (Md) mitigated the misconduct used to characterize his discharge.  The Board concluded that the Petitioner’s PTSD/Md-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. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions, and that a discharge upgrade to “General (Under Honorable Conditions)” (GEN) is appropriate at this time. 

The Board was not willing to grant an honorable discharge characterization and believed that Marines should receive no higher discharge characterization than is due.  The Board determined that an honorable discharge was appropriate only if the Marine’s service was otherwise so meritorious that any other characterization of service would be clearly inappropriate.  The Board concluded by opining that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record even under the liberal consideration standards for mental health conditions, and that a GEN discharge characterization (and not honorable) was appropriate. Moreover, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating certain VA benefits, or enhancing educational or employment opportunities.  Additionally, 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 only merits a GEN characterization of service and no higher. 

Notwithstanding the recommended corrective action below, the Board did not find a material error or injustice with the Petitioner’s reentry code. The Board concluded the Petitioner was assigned the correct reentry code based on the totality of his circumstances, and that such reentry code was proper and in compliance with all Department of the Navy directives and policy at the time of his discharge. 

Additionally, the Board noted there was no convincing evidence in the record to support Petitioner’s contention that he did not receive adequate representation or experienced IAC.  The Board concluded that Petitioner failed to meet his burden to show that: (a) his defense counsel’s performance was deficient and fell below an objective standard of reasonableness, and (b) but for the alleged deficiencies, that there was a reasonable probability of a more favorable result.  Accordingly, the Board concluded that no IAC occurred, and any such suggestion or argument was not persuasive. 

RECOMMENDATION 

In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action.
 
That Petitioner’s record be corrected to reflect that upon his discharge from the Marine Corps his rank was administratively restored to Staff Sergeant (E-6) effective 09 August 2011. Note: Petitioner’s original date of rank will also be reelected on his new DD Form 214. 

Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty with the following changes:  Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” and the separation code be changed to “JFF1.” Block 4a will read “SSgt,” block 4b will read “E-6,” and block 12i will indicate the Petitioner’s originaleffective date of pay grade for Staff Sergeant (E-6). 

That a copy of this report of proceedings befiled 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 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. 


									6/11/2021 

									Deputy Director