Docket No: 6703-20 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, “SupplementalGuidanceto Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD,” of3 September 2014 (c) USD memo, “Consideration of Discharge UpgradeRequests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records byVeteransClaiming PTSD or Traumatic BrainInjury(TBI),” of 24 February2016 (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,” of25 August 2017 (e) USD memo of25Jul2018 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or ClemencyDeterminations,” of 25July 2018 (f) Advisory Opinion of 16 May 2021 Encl: (1) DD Form 149 w/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 by upgrading his discharge characterization to honorable, or in, in the alternative, to general (under honorable conditions), as well as associated relief in the form of changing the narrative reason and authority for his discharge.. As described below, the Board recommended granting reliefin the form of upgrading the Petitioner’s discharge characterization to general (under honorable conditions) and associated relief. 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 24 May 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted ofPetitioner’sapplication together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, and references (b) through (e), which include the 25 August 2017 guidance from the Subj: REVIEW OF NAVAL RECORD OF Under Secretary of Defense for Personnel and Readiness regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel 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 the 16 May 2021 advisory opinion (AO), reference (f), furnished by qualified mental health provider. 3. The Board, having reviewed all the facts of record pertaining to the subject former member’s allegations of error and 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. The Petitioner enlisted in the Marine Corps on 28 October 1992. On 7 June 1993, he was counseled and warned due to his excessive use of alcohol. On 19 January 1994, the Petitioner received nonjudicial punishment for unauthorized absence from 20 December 1993 to 2 January 1994. From 26 January 1994 to 5 April 1994, the Petitioner participated in Operation Continued Hope in Somalia. From 7 July 1994 to 16 August 1994, the Petitioner participated in Operation Support Democracy in . As a result of a positive urinalysis for use of cocaine, on 18 October 1994, the Petitioner was evaluation for substance abuse. The report of the substance abuse evaluation found the Petitioner was not dependent on drugs and found that he should be held strictly accountable for his actions. On 24 October 1994, the Petitioner received nonjudicial punishment for use of cocaine. On 3 January 1995, the Petitioner was notified of the initiation of administrative separation processing, and his rights in connection therewith. He waived his right to an administrative board. On 3 January 1995, his commanding officer recommended that to the separation authority that Petitioner be discharged with an other than honorable characterization of service. On 2 February 1995, the separation authority directed that Petitioner be discharged with an other than honorable characterization of service and on 14 February 1995 he was so discharged. c. In 2000, the Petitioner filed an application with the Naval Discharge Review Board (NDRB). In his application for review, he explained that he experimented with drugs one time as he was processing and coping with his experience in . He also highlighted his positive service and his post-service accomplishments. On 25 January 2001, the NDRB denied his application finding that his discharge was proper and equitable and it explained that, with respect to review on the basis of clemency, the Petitioner did not provide sufficient post-service materials to evaluate his application from a clemency perspective. d. In his petition before this Board, the Petitioner contends that he suffers every day from PTSD, which numerous medical professionals have diagnosed as resulting from his experiences in combat and his multiple overseas deployments, which directly caused his substance-seeking behavior. Petitioner further contends that under Department of Defense and USMC guidelines and rules in place today, he would have received the necessary treatment and therefore would not have needed to resort to illegal substances in order to cope with his PTSD. The Petitioner also contends that his discharge process was in error because he did not have adequate access to legal counsel. e. In connection with his contention that his misconduct should be mitigated by his PTSD, the Board requested, and received, an advisory opinion (AO). The AO is overall favorable to Petitioner, and found that his“drug use misconduct may be seen as a maladaptive coping strategy to alleviate his psychological symptoms, whichis commonin PTSD.” The AO conluded, i[i]n my clinical opinion, the available objective evidence supports Petitioner’s contention of suffering from undiagnosed PTSD during his military service, and that his mental health condition may have mitigated his misconduct, but not his misconduct prior to his deployment. f. After a careful review of all of the documentation of record, the Board reached the following conclusion. CONCLUSION Upon review and consideration of all the evidence of record, and in view of references (b) through (e), the Board determined that, with respect to the specific relief that Petitioner requested, there exists an error or injustice warranting relief. Specifically, the Board found, consistent with the AO and applying liberal consideration, a portion of the Petitioner’s misconduct should be mitigated by his PTSD. The Board noted favorably that the Petitioner maintained the same contention with his current petition as he did before the NDRB, namely, he was coping with his experiences in Consistent with the AO, the Board agreed that the Petitioner’s misconduct based on his drug use should be mitigated by his PTSD, but his nonjudicial punishment for unauthorized absence, prior to his deployments, is not mitigated by his PTSD. Accordingly, the Board voted unanimously to upgrade his discharge characterization to general (under honorable conditions) as well as associated relief in the form of changing his narrative reason and authority for discharge to Secretarial Authority and separation code to JFF. Therefore, based on a careful review of all of the facts presented, the Board concludes that Petitioner is entitled to relief as follows. RECOMMENDATION In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating that his discharge at separation was general (under honorable conditions), that the narrative reason and authority for his separation was Secretarial Authority, and separation code was JFF; and That no further changes be madeto Petitioner’srecord. A copy of thisreport ofproceedings shall be filedin Petitioner’s naval record. 4. It is ceitified that a quonun was present at the Board's review and deliberations, and that the foregoing is a hue 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 Conection 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 conective action, taken under the authority of the reference, has been approved by the Board on behalf of the Secretary of the Navy. 5/28/2021 Executive Director 4