DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7968-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER USN, 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 forCorrection of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments 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 reflect an honorable characterization of service. 2. The Board, consisting of Ms. Ms. and Ms. reviewed Petitioner’s allegations of error and injustice on 4 August 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 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 considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to the Petitioner. 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. Petitioner enlisted and entered a period of active duty in the Navy on 19 September 1972. On 4 March 1973 Petitioner’s command was notified by the Bureau via Naval speed letter that “undue hardship may exist in the family” of Petitioner. The command was directed to inform Petitioner of his right to submit a request for separation from active service due to hardship. Petitioner entered three periods of unauthorized absence (UA) from 6 February to 27 March 1973, 14 May – 16 May 1973, and 4 June to 9 July 1973. On 6 August 1973 Petitioner was convicted by special court-martial (SPCM) of three specifications of UA in violation of Article 86, Uniform Code of Military Justice (UCMJ); and for disobeying a lawful order and disrespect to a superior petty officer in violation of Article 91, UCMJ. On 9 September 1973 the local police department reported that Petitioner was accused of cutting another Sailor on the hand with a knife and then throwing the knife in a ravine while fleeing. The report stated the victim received 3 sutures in his hand and noted 4 witnesses were present at the time the incident occurred. Petitioner was taken into custody and charged with assault with a deadly weapon. A charge of assault in violation of Article 128, UCMJ was referred against Petitioner at a SPCM on 17 September 1973. On 19 September 1973 Petitioner submitted a request for an undesirable discharge for the good of the service in lieu of trial by court-martial. The request was approved and Petitioner was discharged with an other than honorable characterization of service on 13 December 1973. d. On 26 April 1973 Petitioner’s wife wrote a letter to the command asking for Petitioner to be allowed to come home to help her due to her living conditions. e. On 20 September 1973 Petitioner’s mother submitted a congressional inquiry to her Senator regarding Petitioner’s incarceration after the assault accusation stating in pertinent part, “[Petitioner] told me a white guy call [sic] him a lots [sic] of bad names and they got in to it and grab [sic] at him and cut him with his fingernail while they was all ganging around him….” f. Petitioner provided documentation dated 17 May 2021 diagnosing him with PTSD. g. Petitioner contends his misconduct was not dishonorable. He states he exceeded his 30 day authorized leave period and entered a period of UA because his family was homeless due to his wife’s drug habits and he was trying to find them a home. He further contends he has been suffering from PTSD along with other injuries. h. Petitioner noted in his personal statement that he attended the and earned an Associate degree in General Office Management. Post-discharge he worked as an elevator mechanic assistant for 28 years, a certified structural steel worker, and automobile mechanic. He retired and is now self-employed. i. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s available records and provided an AO dated 9 June 2021. The AO noted that although Petitioner contended he suffered from PTSD, he did not provide any description or evidence of an in-service or post-service mental health condition, nor did he describe any traumatic events, symptoms he experienced while in-service indicating a mental health condition, or any linkage between a mental health condition and his misconduct. Furthermore, Petitioner was psychiatrically evaluated on 5 December 1973 and found to be responsible for his actions with no evidence of current or past mental health conditions. Consequently, the AO concluded that the preponderance of objective evidence failed to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or his in-service misconduct could be attributed to a mental health condition. CONCLUSION: The Board reviewed Petitioner’s application under the guidance provided in references (b) through (e). Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief and that as a grant of clemency, his characterization of service should be corrected to reflect general (under honorable conditions). The Board applied liberal consideration in accordance with the references; however concurred with the AO and found insufficient evidence to determine that Petitioner suffered from a mental health condition during his military service. The Board found Petitioner’s characterization of service to be appropriate at the time of discharge; however in light of reference (e), now grants clemency based primarily upon Petitioner’s family circumstances prior to the time his misconduct occurred, and his post-service conduct. Although the Board does not condone Petitioner’s misconduct, the Board noted the record well established that prior to his UCMJ violations, Petitioner was experiencing extreme difficulty with his family and in particular, had great concern for the well-being of his children. Furthermore, the Board noted that Petitioner’s family issues appear to be the impetus to the charges that resulted in his SPCM conviction. Additionally, the Board took into consideration Petitioner’s candid personal statement that described in detail the hardships he experienced while growing up, and how these experiences affected his conduct while in-service. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “General (Under Honorable Conditions).” That no other changes be made and 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. 8/4/2021 Executive Director