DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8758-20 Ref: Signature Date 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 (3) Administrative Remarks (Page 11) counseling entries of 5 Mar 19 (4) Administrative Remarks (Page 11) counseling entries of 25 Oct 19 (5) Administrative Remarks (Page 11) counseling entries of 13 Dec 19 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 reentry code be changed from RE-4 to RE-1, reinstatement to active duty, and back pay of all pay and entitlements from the date of his separation. 2. The Board, consisting of , and reviewed Petitioner’s allegations of error and injustice on 9 July 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) of 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. Petitioner enlisted in the Marine Corps on 22 May 2017. c. On 16 November 2018, Petitioner received nonjudicial punishment (NJP) for being absent from his place of duty; disrespecting a superior commissioned officer by addressing him in an argumentative tone, contemptuously turning away from the officer and removing his jacket in a threatening manner; willfully disobeying a superior commissioned officer by saying words in refusal to calm down and removing his jacket in a threatening manner; failure to obey an order by drinking alcohol; and drunkenness. d. On 5 March 2019, Petitioner received enclosure (3), an administrative remarks (Page 11) 6105 counseling entry for failure to obey an order by showing up to work at/or about 0800 instead of reporting at 0630. e. On 25 October 2019, Petitioner received enclosure (4), a 6105 counseling entry for failure to obey an order by failing to surrender his extra common access card (CAC) to Defense Enrollment Eligibility Processing System (DEERS) and noncompliance with procedural rules by failing to notify his staff noncommissioned officer and DEERS after losing his CAC. f. On 13 December 2019, Petitioner received enclosure (5), a 6105 counseling entry for disobeying an order to report to the legal office and an unauthorized absence (UA) of one hour. g. Subsequently, Petitioner was notified of pending administrative separation action by reason of misconduct due to pattern of misconduct. After he waived his procedural rights, Petitioner’s commanding officer recommended Petitioner be separated with a general, under honorable conditions, character of service due to misconduct. On 15 January 2020, the discharge authority directed Petitioner be discharged with a general, under honorable conditions, character of service by reason of misconduct due to pattern of misconduct. Petitioner was discharged on 12 February 2020 and assigned a RE-4 (not recommended for reenlistment) reentry code. h. Petitioner contends his discharge was unjust and improper for the following reasons: (1) His involuntary administrative separation was due to a social anxiety diagnosis, unwarranted 6105 counselings, and leadership that was biased against him due to a previous administrative separation being rescinded with the help of a congressional inquiry. (2) After the rescinded administrative separation, Petitioner was unfairly kept at the same unit after he “jumped” the chain of command and contacted his state congressman for assistance. (3) Separation by reason of misconduct due to pattern of misconduct requires two or more discreditable involvements with civil or military authorities. Petitioner contends his 16 November 2018 NJP was “deemed out of [his] control” by medical personnel due to a mental health diagnosis of social anxiety disorder which caused him to consume alcohol to avoid anxiety. Additionally, Petitioner contends two of the 6105 counselings were unjust. (4) Petitioner contends his 5 March 2019 and 13 December 2019 6105 counseling entries are unjust. He provided copies of text messages from his superior on both occasions and those text messages show that his superior was not only aware of the schedule conflicts but also authorized Petitioner to report at different times. (5) Petitioner contends he was a good Marine and his service was honorable. In support of his contention, he submitted documentation reflecting his October 2018 nomination for Marine of the Quarter, over 50 letters of appreciation and commendation, one meritorious mast, and over one hundred volunteer service hours. (6) Petitioner submitted four advocacy letters commending his post-service accomplishments and character. i. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO on 6 May 2021. The AO stated that although Petitioner contends medical personnel linked his alcohol-related incident to social anxiety, he did not provide proof of the assessment. However, Petitioner did provide a psychiatry note dated 15 November 2019 which referenced his social anxiety disorder diagnosis and ongoing therapy. The AO author further stated that self-medication with substances is common for those who suffer from social anxiety disorders. The AO concluded the evidence indicated Petitioner exhibited behaviors associated with a mental health condition during his military service and some of his misconduct may be mitigated by his mental health condition. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board reviewed his application under the guidance provided in references (b) through (e). The Board, noting the text messages provided by Petitioner, concluded enclosures (3) and (5) are unjust and should be removed from Petitioner’s record. Specifically, the Board, relying upon the text message of 1 March 2019, determined it was unjust to counsel Petitioner on 5 March 2019 for failing to obey an order when his superior texted him to “disregard your last order from me and report to Staff Sergeant in the tool room at 0800 on Monday for further instructions.” The Board further determined it was unjust to counsel Petitioner on 13 December 2019 regarding disobeying an order to report and for being UA for one hour when the provided text messages demonstrates Petitioner was told to keep the doctor appointment which conflicted with the directed report time. 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 mental health condition at the time of his military service and some of his misconduct should be mitigated. Additionally, in the interest of justice, the Board further determined Petitioner’s narrative reason, separation code, and separation authority should be changed to “secretarial authority.” However, the Board determined the appropriate and authorized reentry code based on the available evidence was RE-3C (disqualifying factor is not covered by another code) which is a reentry code for which a waiver may be granted. However, the Board determined there was insufficient evidence of an error or injustice warranting reinstatement to active duty or back pay of all pay and entitlements. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in accordance with the Wilkie Memo. Accordingly, given the totality of the circumstances, the Board determined Petitioner’s request to be reinstated and receive back pay since the day of separation does not merit relief. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 and discharge certificate indicating his characterization of service as “honorable,” narrative reason for separation as “secretarial authority,” separation code as “JFF1,” separation authority as “MARCORSEPMAN 6421,” and reentry code as “RE-3C.” Petitioner’s naval record be corrected by removing enclosure (3), his 5 March 2019 Administrative Remarks (Page 11) 6105 counseling entry. Petitioner’s naval record be corrected by removing enclosure (5), his 13 December 2019 Administrative Remarks (Page 11) 6105 counseling entry. That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and that no such entries or material be added to the record in the future. This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. 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. 8/2/2021 Executive Director