DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 

Docket No: 7611-15 
MA~ 2 o2616 
From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy 
Subj: REVIEW OF NAVAL RECORD ICO 

Ref: (a) Title 10 U.S.C. 1552 
Encl: (1) DD Form 149 w/attachments 
(2) Subject's naval record 
1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to upgrade his characterization of service and change the narrative reason of his separation to secretarial authority. 

2. The Board, reviewed Petitioner's allegations of error and injustice on 29 April 2016 and, pursuant to its regulations, determined that .the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies. 
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 sought treatment for symptoms of Post-traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) in January 2010. As a result he was diagnosed and treated for PTSD and TBI from January 2010 until he was discharged. 


c. Petitioner tested positive for mariJuana in February 2010 resulting in his conviction at a summary court-martial pursuant to his guilty pleas. In accordance with regulations, Petitioner was processed for administrative separation for drug abuse. 

d. Commanding General, 2nd Marine Division policy letter 07-10 required the medical screening of service members pending administrative separation for PTSD/TBI. If PTSD/TBI diagnosis exists, the policy requires an assessment by mental health specialists whether either condition contributed to the basis for separation or affect the service member's judgment. 

e. Petitioner's file appears to show a discrepancy between the policy letter requirements and the medical officer review conducted on 28 April 2010. Specifically, the medical review was conducted after the notification of separation processing and no medical assessment of whether Petitioner's conditions contributed to his misconduct. The primary reason for this discrepancy seems to be because the medical officer disputes the diagnosis of either condition based on evidence the Petitioner may have fabricated events that formed the basis for the original diagnoses. 

f. Based on the evidence, including the Medical Officer's assessment, Petitioner's chain of command recommended his discharge with an Other than Honorable characterization of service. A recommendation approved by the Separation Authority. 

g. Petitioner's case was reviewed by the Naval Discharge Review Board resulting in no change to his record. 


CONCLUSION 
Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting the following partial corrective action. The Board determined that Petitioner was afforded the due process required under the regulations. In making their determination, they concurred with the NDRB's finding that the presumption of regularity results in the conclusion that all the separation documents were available to the Petitioner's chain of command and separation authority. Based on the Separation Authority and Staff Judge Advocate review, the Board was convinced that the Petitioner was afforded due process and all administrative rights required under the separation process. In addition, the Board was not convinced that the medical officer's review was conducted improperly since he provided independent evidence that the original diagnoses may have been based on false information by the Petitioner. 

However, despite the presumption of regularity and the conclusion that Petitioner was afforded all necessary due process, the Board concluded that an injustice exists in Petitioner's case. The Board felt that Petitioner's request for assistance through his Chaplain and Chain of Command showed he was suffering from symptoms that were impacting his mental well-being. Whether his misconduct influenced by PTSD or TBI could not be determined since evidence exists that contradicts Petitioner's version of facts that forms the basis for his diagnoses. Yet the Board concluded there was sufficient evidence to show that 

Petitioner was suffering from symptoms serious enough to impact his judgment . This impact to his judgment was not sufficient to excuse his behavior but was determined to be sufficient mitigation to justify an upgrade to his characterization of service .to a General under honorable conditions. The Board specificall y found t hat Petitioner was properly convicted at his court-martial since t here was no evidence he was not responsible for his behavior. Therefore, his narrative reasons for separation should remain unchanged. In addition, the Board found that the mitigating evidence in the case does not warrant an upgr ade higher than a General characterization of service . 

RECOMMENDATION: 
That Petitioner's naval record be corrected, where appropriate, to show that: 
a. Petitioner's received a General Discharge under Honorable Conditions. A DD Form 215 will be issued to reflect the new characterization of service. No other change is required. 

b. A copy of thi s Report of Proceedings will be filed in Petitioner's naval record. 


4. It is certified that quorum was present at the Board's review and deliberations, and that the foregoing is a t rue 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 i s 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. 

Execut i ve Di rect or