DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 677-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , USMC, 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), Petitioner filed enclosure (1) with the Board for Corrections of Naval Records (Board), requesting on reconsideration that his naval record be corrected to upgrade his characterization of service and make other conforming changes to his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214). 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 12 February 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 the 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, the Board determined that it was in the interests of justice to review the application on its merits. c. The Board determined that Petitioner’s personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered Petitioner’s case based on the evidence of record. d. Petitioner enlisted in the Marine Corps and began a period of active service on 30 June 1967. Petitioner’s original service number was. On 19 January 1968, Petitioner was convicted at a Special Court-Martial (SPCM), pursuant to his guilty pleas, of eight specifications of assault consummated by a battery. The misconduct underlying the SPCM related to a hazing incident of other Marines. You were initially sentenced to confinement for three months, but the Convening Authority suspended all portions of your sentence. e. Petitioner’s embarkation slips indicated he arrived at March 1968. Between 12 March 1968 and 8 September 1968 Petitioner participated in four combat operations as an Marine (MOS ). f. On 27 September 1968 Petitioner was convicted at a General Court-Martial (GCM), pursuant to his guilty pleas, of nine separate specifications of assault with a deadly weapon. He was sentenced to confinement for five years, total forfeitures of pay, and to be discharged from the Marine Corps with a bad conduct discharge (BCD). On 10 April 1970, the Naval Clemency Parole Board reduced the period of confinement by six months. At the completion of appellate review in Petitioner’s GCM case, the Petitioner was discharged from the Marine Corps on 26 June 1970 with a BCD. g. On 30 September 2019, the Board originally determined that no relief was warranted. The Board concluded that the evidence was insufficient to attribute Petitioner’s misconduct to PTSD. h. In short, Petitioner contended that he was suffering from service-connected post-traumatic stress disorder (PTSD) related to his service in. The Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service. i. As part of the review process, a licensed mental health provider clinical psychologist, reviewed Petitioner’s contentions and the available records and issued a medical opinion that Petitioner provided documentation of his post-service PTSD diagnosis attributed to his military service in Vietnam. The provider initially determined that Petitioner’s misconduct prior to being in Vietnam cannot be attributed to PTSD as it occurred prior to his reported trauma/triggering event. The provider also noted that Petitioner’s medical records did not note any mental health concerns prior to his duty in Vietnam. However, the provider concluded by opining that Petitioner’s misconduct in Vietnam forming the basis of his GCM was likely linked to his mental health condition and undiagnosed PTSD. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). 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 references, the Board felt that Petitioner’s diagnosed mental health condition mitigates the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s PTSD-related symptoms and condition as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s pattern of 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 with a BCD, and that a general (under honorable conditions) (GEN) discharge and no higher under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of most veterans’ benefits. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board unequivocally did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. Additionally, the Board determined that Marines should receive no higher discharge characterization than is due. The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance greatly outweighed the positive aspects of his military record even under the liberal consideration standard for mental health conditions. The Board also that determined that Petitioner’s misconduct prior to his Vietnam service was not attributable to, or mitigated by, PTSD. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate. Finally, 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, and that the reentry code should remain “RE-4.” The Board also noted that Petitioner participated in four combat operations as an (MOS ) while in . Based on Petitioner’s described combat experiences, the Board determined that Petitioner rendered satisfactory performance under enemy fire while actively participating in ground or surface engagements, thus making him eligible to receive the Combat Action Ribbon. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner be issued a new DD Form 214 that indicates he was discharged on 26 June 1970, with an under honorable conditions (general) character of service, Convenience of the Government – Separation for other good and sufficient reasons when published by the Secretary of the Navy narrative reason for separation, MARCORSEPMAN 6012.1f 21L reason and authority, and the reenlistment code remain RE-4 That Petitioner be authorized the Combat Action Ribbon. 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. 2/18/2021 Executive Director