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 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 that his naval record be corrected to upgrade his characterization of service and make other conforming changes to his DD Form 214 following his unsuitability discharge for a personality disorder. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 19 March 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, it is in the interests of justice to review the application on its merits. c. The Petitioner enlisted in the Marine Corps and began a period of active service on 2 July 1980. On 23 March 1981 Petitioner underwent a psychological evaluation following a suicide attempt/gesture. During the examination, the Medical Officer (MO) noted that petitioner indicated a “history of drug/alcohol abuse since age 12; has used coke, acid, reefer, speed…valium, [and] quaaludes.” The MO did not find any evidence of psychosis and found Petitioner mentally competent. The MO diagnosed Petitioner with a mixed personality disorder (character and behavior disorder), and mixed substance abuse disorder. The MO determined that both diagnoses existed prior to entry (EPTE) into the Marine Corps. d. On 30 March 1981 Petitioner received a “Page 11” counseling warning (Page 11) for displaying a pattern which is indicative of a contemptuous attitude towards regulations and negligence in assigned duties. The Page 11 also informed Petitioner that he was temporarily decertified from his reliability billet. On 21 April 1981 Petitioner received NJP for leaving his post before being properly relieved, five specifications of unauthorized absence (UA), and failing to obey a lawful order. On 5 June 1981 Petitioner received a Page 11 notifying him that he was being permanently disqualified for assignment to a reliability billet. e. On 1 July 1981 Petitioner was convicted at a Summary Court-Martial of two specifications of UA, disrespect toward a superior commissioned officer, failure to obey a lawful order, and assault upon a superior non-commissioned officer. On 4 August 1981 Petitioner received a Page 11 informing him he was recommended for discharge by reason of unsuitability due to his character and behavior disorder. f. On 12 August 1981 Petitioner’s command initiated administrative separation proceedings by reason of unsuitability on the basis of a diagnosed character and behavior disorder. Petitioner waived his rights to consult with counsel and to submit a statement on his own behalf. The lowest eligible discharge characterization Petitioner could have received was General (Under Honorable Conditions) (GEN). Ultimately, on 2 October 1981 he was discharged from the Marine Corps with a GEN discharge and assigned an RE-3B reentry code. The Board specifically noted on his DD Form 214 that the narrative reason for separation was “Unsuitability – General Under Honorable Conditions,” which corresponds to an administrative separation case involving a personality disorder. g. In short, Petitioner contended that was dealing with a traumatic brain injury (TBI) he suffered following an artillery training accident while firing for effect with an 8-inch Howitzer. The Petitioner contended that he suffered a TBI at such time resulting in several suicide attempts right after the incident, as well as memory loss, violent outbursts, and an inability to concentrate or take orders. The Petitioner argued that his TBI mitigated the misconduct that led to his GEN characterization of service. The Petitioner also stated that the VA determined he had service-connected depression and that the VA granted him a 70% disability rating in 2018. h. As part of the review process, the BCNR Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions, and the available records, and issued an AO on 19 February 2021. The MD initially determined that the Petitioner suffered from TBI stemming from exposure to heavy concussive artillery operations in March 1981. The MD observed that post-service Petitioner was diagnosed in July 2018 with diffuse TBI with loss of consciousness of unspecified duration, and in August 2019 Petitioner was further diagnosed with TBI from heavy artillery exposure in USMC at age 17. The MD concluded by opining that there was sufficient indirect evidence that Petitioner exhibited behaviors associated with TBI during his military service and that his misconduct may be mitigated by his TBI. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in the Hagel, Kurta, and Wilkie Memos. 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 Hagel, Kurta, and Wilkie Memos, the Board determined that it would be an injustice to label one’s discharge as being for a diagnosed character and behavior disorder. Describing Petitioner’s service in this manner attaches a considerable negative and unnecessary stigma, and fundamental fairness and medical privacy concerns dictate a change. Accordingly, the Board concluded that Petitioner’s discharge should not be labeled as being for a mental health-related condition and that certain remedial administrative changes are warranted to the DD Form 214. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization and believed that Marines should receive no higher discharge characterization than is due. The Board determined that an honorable discharge was appropriate only if the Marine’s service was otherwise so meritorious that any other characterization of service would be clearly inappropriate. The Board concluded by opining that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record even under the liberal consideration standards for mental health conditions, and that even though flawless service is not required for an honorable discharge, in this case only a GEN discharge characterization was appropriate. The Board further noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. The Petitioner’s overall active duty trait average was 3.6 in conduct. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 4.0 in conduct/military behavior for a fully honorable characterization of service. The Board determined that Petitioner’s conduct/military behavior marks during his active duty career were a direct result of his performance and conduct deficiencies. Moreover, the Board also determined that Petitioner’s pre-existing personality disorder also partially contributed to the behaviors underlying his discharge and that TBI was not the sole proximate cause of his misconduct. Additionally, the Board determined that Petitioner had a legal, moral, and ethical obligation to remain truthful on his enlistment paperwork. Had Petitioner properly and fully disclosed his significant pre-service drug and alcohol abuse since age twelve, he would have likely been disqualified from enlisting. Lastly, even 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. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s separation authority be changed to “MARCORSEPMAN par. 6012.1g,” the separation code be changed to “JFF1,” the narrative reason for separation should be changed to “Discharged involuntarily when directed by the Secretary of the Navy,” and the reentry code be changed to “RE-3P.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. 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.