DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER 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 (BCMRs/BCNR) by Veterans Claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI), of 24 February 2016 (d) USD 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) USD 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) DD Form 214 (3) NAVMC 118(12), Offenses and Punishments (4) NAVMC 118(130, Record of Conviction by Court-Martial, 16 Jul 96 (5) NMCCA Order in the case of United States v. [Petitioner], NMCM 97 00008, 2 Jul 97 (6) Record of Service (Proficieny/Conduct), 17 May 96 (7) Letter, dtd 12 Oct 20 (8) BCNR Advisory Opinion, 25 Apr 21 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 characterization of service be upgraded to honorable. 2. The Board reviewed Petitioner’s allegations of error or injustice on 10 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 the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) – (e). 3. The Board, having reviewed all of the facts of record pertaining to Petitioner’s allegations of error or injustice, finds as follows: a. Before applying to this Board, the 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 waive the statute of limitations and review Petitioner’s application on its merits. c. The Petitioner enlisted in the Marine Corps and began a period of active duty service on 17 October 1994. See enclosure (2). d. On 31 October 1994, Petitioner was present and witnessed his drill instructor commit suicide by shooting himself in the head with an M-16 rifle on the side of an indoor pool while Petitioner and his fellow trainees prepared for a swimming lesson. See enclosure (1). e. On 29 September 1995, Petitioner received nonjudicial punishment (NJP) for operating a motor vehicle while under the influence of alcohol in violation of Article 111, Uniform Code of Military Justice (UCMJ). His blood alcohol concentration was measured at .19 percent. See enclosure (3). f. On 8 April 1996, Petitioner received his second NJP for two specifications of unauthorized absence (UA) in violation in violation of Article 86, UCMJ.1 See enclosure (3). 1 Petitioner’s first UA was for almost two days, while his second was overnight. 2 The convening authority approved the adjudged sentence, but suspended all confinement in excess of 60 days. g. On 3 May 1996, Petitioner received his third NJP for an UA of several days in violation of Article 86, UCMJ. See enclosure (3). h. On 16 July 1996, Petitioner was convicted by a special court-martial (SPCM) of the wrongful use of cocaine in violation of Article 112a, UCMJ, and for a three-day UA in violation of Article 86, UCMJ. His sentence included 75 days of confinement and a bad conduct discharge (BCD).2 See enclosure (4). i. On 2 July 1997, the U.S. Navy-Marine Corps Court of Criminal Appeals affirmed the findings of guilt and the sentence in Petitioner’s SPCM. See enclosure (5). j. On 25 September 1997, Petitioner’s BCD was executed. See enclosure (2). k. Petitioner’s average proficiency and conduct ratings during his enlistment were 4.5 and 4.2, respectively. See enclosure (6). l. In September 2020, Petitioner was diagnosed with post-traumatic stress disorder (PTSD) by a mental health professional. It was this mental health professional’s opinion that Petitioner’s PTSD condition was more likely than not the direct result of the trauma he experienced by witnessing his drill sergeant’s suicide in 1994. See enclosure (7). m. Petitioner contends that his witnessing of his drill instructor’s suicide in 1994 had a profound effect on his mental health for decades. He attributed the misconduct for which he was discharged to his efforts to cope with the untreated symptoms of the trauma that he experienced. See enclosure (1). n. Petitioner’s application and records were reviewed by a qualified mental health professional, who provided an advisory opinion (AO) for the Board’s consideration. The AO found sufficient indirect evidence that Petitioner suffered from PTSD incurred as a result of his military service, and that his in-service misconduct was mitigated his traumatic experience and development of PTSD. See enclosure (8). MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that partial relief is warranted in the interests of justice. Because Petitioner based his claim for relief in whole or in part upon his PTSD condition, the Majority reviewed Petitioner’s application in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his misconduct. In this regard, the Majority agreed with the AO that there was sufficient evidence that Petitioner developed PTSD during his military service, and that his misconduct was mitigated by this condition. In addition to applying liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon Petitioner’s misconduct in accordance with references (b) – (d), the Majority also considered the totality of the circumstances to determine whether clemency was warranted in the interests of justice. In this regard, the Majority considered the mitigating effect upon Petitioner’s misconduct, as discussed above; that Petitioner’s service-connected PTSD condition went untreated and therefore continued to adversely affect him for years after his discharge; Petitioner’s in-service proficiency and conduct ratings; that Petitioner has apparently been a productive member of society despite the stigma of his BCD, as evidenced by his post-service record of employment and volunteer work in his community; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon the totality of the circumstances, the Majority determined that the mitigating factors outweighed the misconduct for which Petitioner was discharged, and that clemency was therefore warranted in Petitioner’s case. Specifically, the Majority determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions). The Majority considered whether Petitioner’s characterization of service should be upgraded to fully honorable in the interests of justice, but determined that such relief was not warranted under the totality of the circumstances given the nature and frequency of Petitioner’s misconduct. Although not specifically requested by the Petitioner, the Majority also determined that Petitioner’s narrative reason for separation should be changed in the interests of justice to avoid future negative implications from Petitioner’s Marine Corps service. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective actions be taken on Petitioner’s naval record in the interests of justice: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions)”; that the narrative reason for his separation was “Secretarial Authority”; that his separation authority was “MARCORSEPMAN para 6214”; and that his SPD code was “JFF.” 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. MINORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Minority of the Board determined that full relief is warranted in the interests of justice. The Minority also applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon Petitioner’s misconduct in accordance with references (b) – (d), and considered the totality of the circumstances to determine whether clemency is warranted in the interests of justice in accordance with reference (e). In this regard, the Minority concurred with the Majority conclusion that Petitioner’s misconduct was mitigated by his PTSD condition. The Minority disagreed with the Majority, however, in that it believed an upgrade of Petitioner’s characterization of service to fully honorable is warranted under the totality of the circumstances. In reaching this conclusion, the Minority found the mitigating factors to so significantly outweighed Petitioner’s misconduct that an upgrade of Petitioner’s characterization of service to fully honorable was warranted in the interests of justice. Finally, the Minority agreed with the Majority that Petitioner’s narrative reason for separation should be changed in the interests of justice. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that the following corrective actions be taken on Petitioner’s naval record in the interests of justice: 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 para 6214”; and that his SPD code was “JFF.” That Petitioner be issued an Honorable Discharge certificate. 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. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 5/18/2021 XExecutive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS ) DECISION: MAJORITY Recommendation Approved (Partial Relief – Upgrade to General (under honorable conditions); Change to Secretarial Authority) MINORITY Recommendation Approved (Full Relief – Upgrade to Honorable; Change to Secretarial Authority) Board Recommendation Disapproved (Deny Relief) 6/15/2021XAssistant General Counsel (M&RA) Signed by: