Docket No: 7266-20 
                                                                                               From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD ICO   
            
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 PTSD,” of 3 September 2014    
        (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) PDUSD 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,” of 25 August 2017 
 	(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 
     
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 his naval record be corrected to reflect an honorable character of service.   
 
2.  The Board consisting of  and , reviewed Petitioner’s allegations of error and injustice on 23 June 2021 and, pursuant to its regulations, determined 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 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 advisory opinion (AO) furnished by a 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, it is in the interest of justice to review the application on its merits.   
 
   c. Petitioner enlisted in the Marine Corps on 25 February 1977.  On 14 April 1978, he received nonjudicial punishment (NJP) for an unauthorized absence from morning formation and possession of marijuana in a smoking device.  On 29 August 1978, Petitioner received a second NJP for wrongful appropriation of a tape recorder and ten tapes.  On 31 January 1979, he received a third NJP for causing a breach of the peace by engaging in a fist fight.   
 
   d. Subsequently, Petitioner was notified of pending administrative separation action by reason of misconduct due to frequent involvement with military authorities and elected his right to an administrative discharge board (ADB) after consulting counsel.  On 13 April 1979, the ADB determined the preponderance of the evidence supported a finding of misconduct due to frequent involvement and recommended Petitioner’s separation with an other than honorable (OTH) character of service.  The CO concurred with the ADB and recommended separation with an OTH character of service by reason of misconduct.  On 11 May 1979, Petitioner received a fourth NJP for unlawfully striking another Marine in the face with his fist.  After the staff judge advocate determined the ADB was sufficient in law and fact, the discharge authority approved the ADB recommendation and directed Petitioner be discharged with an OTH character of service by reason of misconduct.  Petitioner was discharged on 31 July 1979. 
    
 e.  Petitioner contends his service record warranted an honorable character of service because it was “good until [he] was assaulted by two other Marines” when he was 19-years old and stationed in .  He contends he was “never the same after being released by the hospital and started drinking to numb the pain and PTSD.”   
 
 f.  As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO on 3 May 2021.  The AO noted Petitioner’s in-service record contains a medical note documenting the physical assault by the two Marines which involved striking Petitioner with a club to his face, back of his head, and upper back.  The medical note further states Petitioner lost consciousness, was diagnosed with a concussion, and later experienced headaches as a result of the injuries.  Based on the available evidence, the AO concluded there was sufficient evidence Petitioner likely experienced a Traumatic Brain Injury (TBI) and subsequent PTSD incurred during military service which would mitigate some of his in-service misconduct.   

 
CONCLUSION: 
 
Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants partial relief.  The Board reviewed his application under the guidance provided in references (b) through (e).   
 
The Board, applying liberal consideration and relying upon the favorable AO, determined there was sufficient evidence to support a finding that Petitioner suffered from a TBI and undiagnosed PTSD while in-service.  Noting the physical assault occurred on 3 July 1978, the Board concluded the 14 April 1978 NJP, which occurred prior to the assault, was not mitigated by the TBI or PTSD.  Further, relying on the AO, the Board concluded the misconduct associated with the 29 August 1978 NJP would not be typical behavior resulting from TBI or PTSD and determined the misconduct was not mitigated by the 3 July 1978 assault.  The Board concluded that, in the interest of justice, Petitioner’s service warranted a general, under honorable conditions, characterization of service.  Further, in light of the potential for future negative implications, the Board determined Petitioner’s narrative reason, separation code, and separation authority should be changed to “secretarial authority” and his reentry code changed to correspond with “secretarial authority.”      
 
RECOMMENDATION: 
 
In view of the above, the Board directs the following corrective action: 
 
Petitioner be issued a new DD Form 214 indicating his characterization of service as “general, under honorable conditions,” narrative reason for separation as “secretarial authority,” separation code as “JFF1,” separation authority as “MARCORSEPMAN 6421,” and reentry code as “RE-1J.”         
 
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 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. 
 
                                                                            
7/1/2021
Executive Director