BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6485-20 Ref: Signature Date 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 Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (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) 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 Sexual Harassment,” of 25 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 14 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, which was previously provided to Petitioner. Petitioner was afforded an opportunity to submit a rebuttal, and Petitioner did do so. 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 12 March 1996. Petitioner’s pre-enlistment physical on 8 November 1995 and corresponding medical history noted no psychiatric or neurologic conditions or symptoms. Upon completion of his required active service, Petitioner was discharged from the Marine Corps with an honorable characterization of service and he subsequently affiliated with the U.S. Marine Corps Reserve (USMCR). d. Between November 2001 and July 2008 Petitioner mobilized four separate times in support of Operations Enduring Freedom and/or Iraqi Freedom. Petitioner was discharged with an honorable characterization of service at the completion of each USMCR mobilization. e. On 3 February 2010 began another USMCR mobilization. However, on 22 October 2010 received non-judicial punishment (NJP) for the wrongful use of cocaine. On 22 October 2010 Petitioner was notified he was being processed for an administrative discharge by reason of misconduct due to drug abuse. As part of a pre-trial agreement, Petitioner expressly agreed to waive his rights to present his case to an administrative separation board. Ultimately, on 3 February 2011 Petitioner was discharged from the Marine Corps for drug abuse with an other than honorable conditions (OTH) characterization of service and assigned an RE-4B reentry code. Additionally, because Petitioner was serving in a paygrade above E-3 and separated with an OTH characterization of service, he was automatically administratively reduced to paygrade E-3 effective upon his separation date of 3 February 2011. f. On 6 November 2013 the Naval Discharge Review Board (NDRB) denied relief and determined that Petitioner’s discharge was proper as issued and no change was warranted. However, on 2 November 2018 the NDRB reversed course and granted relief to upgrade Petitioner’s discharge characterization to “General (Under Honorable Conditions)” (GEN). However, the NDRB did not make any additional conforming changes to Petitioner’s DD Form 214. g. In short, Petitioner contended that he was suffering from post-traumatic stress disorder (PTSD) arising out of his combat-related experiences in and his subsequent deployment at the Wounded Warriors Battalion in . Additionally, Petitioner contended he suffered a traumatic brain injury (TBI) as a result of a fall from a helicopter in Iraq. Petitioner further argued that the PTSD and TBI were causative and/or mitigating factors for the behavior underlying his separation and OTH discharge. h. 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 27 April 2021. The MD initially observed that Petitioner had been diagnosed on active duty with major depression, generalized anxiety disorder, dysthymic disorder, and panic disorder as far back as May 2006. The MD noted that Petitioner continued to serve while in treatment for these mental health conditions, to include a six month limited duty board in May 2008 for major depressive disorder (MDD) and panic disorder. The MD noted that Petitioner’s PTSD was exacerbated during his assignment to and caring for wounded warriors and their support groups, rekindling his own PTSD symptoms from his Deployment, and further noted that this was reflected in a mental health evaluation in September 2010 confirming his chronic PTSD diagnosis. The MD also noted that Petitioner’s TBI diagnosis stemming from exposure to blast injury and concussion from falling out of the helicopter was made in 2011 during evaluations at the VAMC. Lastly, the MD noted that Petitioner had been treated for TBI and PTSD, MDD and generalized and panic disorders since discharge through the VA system, and that in January 2013 the VA granted Petitioner with service-connected PTSD and rated him at 100%. The MD concluded by opining that Petitioner incurred PTSD, TBI, MDD, and generalized anxiety disorder on active duty, and that such mental health conditions mitigated his in-service misconduct. 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, TBI, and MDD experiences mitigated the misconduct used to characterize his discharge. The Board concluded that the Petitioner’s PTSD/TBI/MDD-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 GEN conditions, and that a further discharge upgrade to “Honorable” is appropriate at this time. 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 merits a discharge upgrade. 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 03 February 2011, and that he receive all pay and allowances due as a result of these changes. 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 “Honorable,” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the reentry/reenlistment code be changed to “RE-1J.” Block 4a will read “SSgt,” block 4b will read “E-6,” and block 12h will read “2006 08 01.” Petitioner shall be issued a new Honorable Discharge Certificate. Note: Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay and allowances. DFAS is authorized to pay all monies lawfully found to be due as a result of the above corrections to Petitioner’s naval 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 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. 5/20/2021