Docket No. 6941-20 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, “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 w/attachments (2) Enlistment Contract (3) Pre-enlistment Physical Examination (4) Pre-enlistment Medical History (5) Child Case Review Committee Report and Case Chronology (6) NAVMC 118(11) Administrative Remarks – Page 11 Warnings (7) NJP June 1999 (8) Incident/Complaint Report - December 1999 (9) Military Protection Order Extension of 5 January 2000 (10) NJP January 2000 (11) Incident/Complaint Report – January 2000 (12) Special Court-Martial Record of Conviction March 2000 (13) Military Protection Order of 10 April 2000 (14) Military Protection Order of 25 September 2000 (15) County Court Order (16) Summary Court-Martial Record of Conviction November 2000 (17) Notification of Separation Proceedings (18) Acknowledgment of Rights (19) Staff Judge Advocate Review (20) Command Administrative Separation Recommendation (21) DD Form 214 (22) USMC Proficiency and Conduct Trait Averages (23) Advisory Opinion of 21 April 2021 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 to an honorable discharge. 2. The Board reviewed Petitioner's allegations of error and injustice on 11 June 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, and the documents Petitioner provided in rebuttal to the AO. 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. Petitioner enlisted in the Marine Corps and began a period of active service on 26 October 1998. Petitioner’s enlistment physical on 16 October 1998 and self-reported medical history noted no neurologic or psychiatric conditions or symptoms. See enclosures (2) through (4). d. On or about 6 January 1999 Petitioner was involved in a domestic violence incident involving his spouse, who was also serving in the Marine Corps. Petitioner assaulted his spouse by choking her and pushing her to the ground. Enclosure (5). e. On 11 June 1999 Petitioner received a two separate “Page 11” counseling sheet (Page 11) documenting: (1) not adhering to a military protection order (MPO) concerning association with his spouse, and (2) his unacceptable behavior and personal conduct with his spouse. One of the Page 11 counseling sheets expressly warned him that a failure to take corrective action may result in administrative separation or limitation on further service. Petitioner did not make any rebuttal statements to either Page 11 entries. Enclosure (6). f. On 30 June 1999 Petitioner received non-judicial punishment (NJP) for violating a lawful order not to see or phone his wife. Petitioner did not appeal his NJP. On 24 August 1999 Petitioner received a Page 11 warning documenting his failure to attend a 12-week Domestic Violence Class from which he was dropped. The Page 11 noted that this was the second time assistance was offered to Petitioner and that he failed to uphold his end of the bargain to receive counseling. See enclosures (6) and (7). g. On 10 December 1999 Petitioner was involved in an off-base aggravated domestic assault of his wife. During a verbal altercation with his wife, Petitioner hit her on the right side of her forehead, punched her in the right side of her stomach, and kicked her in the head while she was on the ground and knocked her unconscious. The Petitioner’s wife reported during the incident that she kicked Petitioner in an attempt to defend herself. See enclosures (5) and (8). h. On 5 January 2000 Petitioner’s command extended the MPO through 11 February 2000. Petitioner was ordered to remain 500 feet from his spouse and her residence, and to make no contact with her other than through the chain of command. Petitioner was expressly warned that a violation of the MPO may result in administrative or disciplinary action, including trial by court-martial. Enclosure (9). i. On 21 January 2000 Petitioner received NJP for violating a lawful order not to break/violate the MPO, and for making a false official statement in connection with wrongfully staying at his residence. On 22 January 2000 Petitioner and his spouse were involved in another altercation in the barracks. Petitioner’s spouse purportedly instigated the altercation while she confronted Petitioner in the barracks room of another female Marine, however, Petitioner’s spouse also stated that during the altercation he grabbed her by the neck and started choking her. On 29 January 2000 Petitioner broke into his spouse’s home in violation of the MPO and assaulted her by grabbing her and throwing her into a closet while Petitioner’s child was present. See enclosures (5), (10), and (11). j. On 20 March 2000 Petitioner was convicted at a Special Court-Martial of willfully disobeying a superior commissioned officer, insubordinate conduct by willfully disobeying a non-commissioned officer, and breaking restriction. As punishment Petitioner was sentenced to confinement for fifty days, forfeitures of pay, and a reduction in rank to the lowest enlisted paygrade (E-1). Enclosure (12). k. On 10 April 2000 Petitioner’s command issued an MPO to Petitioner that was to remain in effect indefinitely. Petitioner was ordered to remain 1000 feet from his spouse and her residence, and to make no contact with her other than through the chain of command. Petitioner was expressly warned that a violation of the MPO may result in administrative or disciplinary action, including trial by court-martial. On 25 September 2000 Petitioner’s command issued an MPO to Petitioner that was to remain in effect indefinitely. Petitioner was ordered to remain 1000 feet from his spouse and children and their residence, and to make no contact with them other than through the chain of command. Petitioner was expressly warned that a violation of the MPO may result in administrative or disciplinary action, including trial by court-martial. On 27 September 2000 the County General Court of Justice ordered that the Domestic Violence Protective Order they issued on 23 February 2000 be set aside. See enclosures (13) through (15). l. On 3 November 2000 Petitioner was convicted at a Summary Court-Martial of two specifications of willfully disobeying the MPO dated 10 April 2000. As punishment Petitioner was sentenced to hard labor without confinement for fifteen days and restriction for thirty days. Enclosure (16). m. On 7 November 2000 Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct. Petitioner consulted with counsel, and he expressly waived his rights to submit written rebuttal statements to the separation authority, and to request an administrative separation board. On 15 November 2000 the Judge Advocate determined that the separation proceedings were legally and factually sufficient. On 20 November 2000 Petitioner’s commanding officer (CO) recommended an other than honorable (OTH) characterization of service. The CO unequivocally stated in his recommendation: …it is in, my opinion that an other than honorable discharge is warranted. is dangerous and all attempts to rehabilitate him have failed. He is a repeat offender and a Level V failure. He willfully disobeys the orders of his superiors as evident by the page 11, 12, and 13 entries…I vehemently disagree with the [chain of command] statements…His supervisors are obviously disengaged with this Marine's personal life. He should not be afforded the honor of wearing the eagle, globe, and anchor. His off duty conduct is grossly unsatisfactory and unbecoming of a United States Marine. Private needs to find employment elsewhere. Ultimately, on 22 November 2000 Petitioner was discharged from the Marine Corps for a pattern of misconduct with an OTH characterization of service and assigned an RE-4 reenlistment code. See enclosures (17) through (21). n. Based on his available service records, Petitioner’s overall conduct trait average assigned on his periodic performance evaluations during his enlistment was 3.30. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 4.0 in conduct (proper military behavior), to be eligible and considered for a fully honorable characterization of service. Enclosure (22). o. In short, Petitioner contended that he was suffering from PTSD. 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. See enclosures (1) and (23). p. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued an AO dated 21 April 2021. The Ph.D. initially observed that Petitioner’s in-service record revealed contacts with mental health providers for individual/marital counseling regrading several domestic violence incidents. However, the Ph.D. also observed that the records provided did not indicate Petitioner suffered from a psychotic or affective disorder. The PhD noted that Petitioner’s active duty records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The PhD also noted that throughout Petitioner’s disciplinary actions, counselings, and administrative processing, there were no concerns noted warranting referral to mental health resources. The PhD determined that although Petitioner claims he suffered from an undiagnosed mental health condition on active duty, the Petitioner did not provide any description of symptoms meeting the criteria for a mental health condition. The PhD concluded by opining that the preponderance of available objective evidence failed to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition on active duty, or that Petitioner’s in-service misconduct could be mitigated by a mental health condition. Enclosure (23). MAJORITY CONCLUSION Upon review and liberal consideration of all the evidence of record and despite the unfavorable AO, the Board Majority concluded that Petitioner’s request warrants partial relief. In light of the Wilkie Memo, the Board Majority concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions, and that a discharge upgrade to general (under honorable conditions) and no higher is appropriate at this time. The Board Majority was not willing to grant and honorable discharge and determined that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record. Notwithstanding the discharge upgrade recommendation, the Board Majority concluded the Petitioner was originally assigned the correct narrative reason for separation and reentry code based on his circumstances, and that such narrative reason for separation and reentry code were proper and in compliance with all Department of the Navy directives and policy at the time of his discharge. MAJORITY RECOMMENDATION In view of the foregoing, the Board Majority finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” and that no other changes be made to the DD Form 214. That Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. No other changes be made to Petitioner’s record. MINORITY CONCLUSION The Board Minority carefully considered all potentially mitigating factors to determine whether the interests of justice warranted relief in his case, but the Minority determined that his request was entirely without merit and was not willing to grant any requested relief. In accordance with the Kurta, Hagel and Wilkie Memos, the Minority gave liberal and special consideration to his record of service, and his contentions about any traumatic or stressful events he experienced and their possible adverse impact on his service. However, the Minority concluded that there was no convincing evidence that Petitioner suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of his discharge. As a result, the Minority concluded that Petitioner’s misconduct was not due to mental health-related symptoms. Moreover, even if the Board Minority assumed that Petitioner’s pattern of misconduct was somehow attributable to any mental health conditions, the Minority unequivocally concluded that the severity of his misconduct far outweighed any and all mitigation offered by such mental health conditions. The Minority also determined that the evidence of record clearly did not demonstrate that Petitioner was not mentally responsible for his conduct. Additionally, the Minority observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Petitioner’s overall active duty trait average was 3.30 in conduct. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Minority concluded Petitioner’s conduct marks during on active duty were a direct result of his pattern of serious misconduct, which further justified his OTH characterization of service. The Minority determined that characterization under OTH conditions is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine. The Minority also unequivocally determined the record clearly reflected that Petitioner’s domestic violence misconduct was knowing, willful, intentional, and repetitive, and demonstrated he was unfit for further service. Lastly, even in light of the Wilkie Memo and reviewing the record holistically, the Minority still concluded that given the totality of the circumstances his request did not merit any relief. The Minority opined that the Board Majority’s reliance on the Wilkie Memo was misplaced. To the contrary, and in keeping with the letter and spirit of the Wilkie Memo’s guidance, the Minority concluded, in part, that: (a) the Petitioner’s misconduct was particularly egregious and not the type of offenses where the relative severity changes over time, and (b) that relief, if granted, is generally more appropriate for nonviolent offenses than for violent offenses. The Minority concluded that this was not a case warranting clemency. The Minority believed that the Board Majority inappropriately fixated on one instance where the spouse was the aggressor as the marriage was collapsing as a partial basis to grant relief. However, the Minority concluded that treating a recipient of repeated domestic violence as essentially a mutual combatant and not as a victim is a flawed analysis and sends the wrong message to victims of spousal abuse and their children, and acts to excuse and/or condone such nefarious conduct. Accordingly, the Board Minority determined that there was no impropriety or inequity in Petitioner’s discharge, and even under the liberal consideration standard, the Minority concluded that his pattern of misconduct involving domestic violence clearly merited his receipt of an OTH. MINORITY RECOMMENDATION In view of the foregoing, the Minority recommends the following: That Petitioner’s request for correction to his record be denied, and that no corrective action be taken. A copy of this report of proceedings will 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. The foregoing action of the Board is submitted for your review and action. 6/28/2021 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Petitioner’s Request (Grant Relief) Reviewed and Approved Majority Recommendation (Partial Relief) Reviewed and Approved Minority Recommendation (Deny Relief) 7/13/2021 Assistant General Counsel (M&RA)