DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6220-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 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 an Honorable characterization of service. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 6 May 2021, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Although Petitioner did not file his application in a timely manner, the statute of limitation was waived in accordance the 25 August 2017 guidance from the Under Secretary of Defense for Personnel and Readiness (Kurta Memo). 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 2018 Under Secretary of Defense Memo on Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records 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 May 1991. His first non-judicial punishment was on 6 June 1992 due to an assault on another Marine. In 1994, non-judicial punishment was imposed on Petitioner on two occasions in May 1994 and September 1994 for a minor unauthorized absence and wrongful use of marijuana. Petitioner subsequently convicted and awarded a Bad Conduct Discharge (BCD) at a Special Court-Martial on 14 December 1994 after twice using marijuana wrongfully. He discharged from the Marine Corps on 5 January 1996 with a BCD after completion of his appellate review. c. The Naval Discharge Review Board denied Petitioner’s request for an upgrade to his characterization of service on 22 October 2009. This Board denied his request for a disability discharge on 5 June 2017. Petitioner provided as new evidence a medical opinion from his mental health provider that he was not mentally responsible for his misconduct and should have been discharged for his mental health condition. A favorable advisory opinion was issued by this Board’s Mental Health Team on 19 April 2021 that states, “based on the available evidence, it is my considered medical opinion the preponderance of objective evidence indicates that Petitioner likely experienced psychotic symptoms consistent with the early stages of Schizophrenia at the time of his military service, and his in-service misconduct could be mitigated by his evolving mental health disorder.” The opinion concluded that Petitioner likely started suffering from the onset of Schizophrenia at the time of his misconduct. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. In making their findings, the Board substantially concurred with the advisory opinion in Petitioner’s case. Specifically, the Board concluded that Petitioner’s characterization of service should be upgraded to General under Honorable conditions after liberal consideration of his mental health condition at the time of his discharge. In the Board’s opinion, Petitioner’s record of misconduct was mitigated sufficiently to merit the recommended upgrade as a matter of clemency. Regarding Petitioner’s request to change his narrative reason for separation to disability, the Board concluded insufficient evidence exists to conclude he was unfit for continued naval service at the time of his discharge. While there are two medical opinions that state Petitioner likely suffered from the onset of schizophrenia, the Board noted that his condition did not affect his ability to perform his duties. Other than his multiple uses of marijuana that led to his punitive discharge from the Marine Corps, the Board found no evidence of unfitness in his record. Further, the Board concluded there was insufficient evidence to conclude Petitioner was not mentally responsible for his misconduct while on active duty. In making this finding, the Board noted that Petitioner entered the Marine Corps with a drug waiver for preservice marijuana use that predated his reported symptoms for schizophrenia. Accordingly, the Board also determined that Petitioner was ineligible for disability processing based on his discharge for misconduct that resulted in a punitive discharge. The fact this Board chose to upgrade Petitioner’s characterization of service did not, in the Board’s opinion, excuse the misconduct that formed the basis for his discharge or make him eligible for disability benefits. The Board concluded that its decision to upgrade Petitioner’s characterization of service was sufficient mitigation to address any injustice in his case. Finally, Petitioner’s request to set aside the findings of his Special Court-Martial conviction falls outside the jurisdiction of this Board based on 10 U.S.C. § 1552 (f)(2). Therefore, no action was taken on that request for relief. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by upgrading Petitioner’s characterization of service from “Bad Conduct Discharge” to “General under Honorable Conditions.” Petitioner will be issued a new DD Form 214 reflecting this change to his 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. 5/14/2021 3