DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1534-16 From: Chairman, Board for Correction ofNaval Records To: Secretary ofthe Navy Subj: REVIEW NAVAL RECORD OF Ref: (a) 10 U.S.C. §1552 (b) SECDEF Memo of3 Sep 14 "Supplemental Guidance to Military Boar9s for Correction ofMilitary/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD" (c) PDUSD Memo of24 Feb 16 "Consideration ofDischarge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction ofMilitary/Naval Records by Veterans Claiming PTSD or TBI" Encl: (1) DD Form 149 with attachments (2) Case summary I (3)Psychological Services Post-service PTSD diagnosis of7 Sep 11 (4)Psychiatric Clinic Post-Service PTSD diagnosis of7 Jan 13 (5) Department ofVeterans Affairs Post-service PTSD diagnosis of3 Jul 13 (6) BUMED memo 5740 Ser M34/16UM36095of12 Apr 17 (7) Petitioner rebuttal to BUMED memo of24 May 17 1. Pursuant to the provisions ofreference (a), Petitioner, a former enlisted member ofthe Marine Corps filed enclosure (1) with this Board requesting that his other than honorable characterization ofservice be changed in light of current guidelines as reflected in references (b) and (c). Enclosures (2) through (7) apply. 2. The Board, consisting of reviewed Petitioner's allegations oferror and injustice on 7 June 2017, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence ofrecord. Documentary material considered by the Board consisted ofthe enclosures, relevant portions of your naval records, applicable statutes, regulations, policies, post-service PTSD diagnosis, advisory opinion (AO) provided by Navy Bureau ofMedicine and Surgery (BUMED) and Petitioner's rebuttal to BUMED's AO. 3. The Board, having reviewed all the facts ofrecord 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 regnlations within the Department ofthe Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest ofjustice to waive the statute oflimitations and review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period ofactive service on 9 April 1996. On 28February1997 and 24July1997, he received non-judicial punishment (NJP) for disrespect towards a superior commissioned officer, insubordinate conduct, malingering on two occasions, unauthorized absence on two occasions and violating a base order by driving on a military installation while on state suspension. Subsequently, he was notified of administrative separation processing at which time he initially elected his right to present his case to an administrative discharge board (ADB), but at a later date waived this right. The separation authority directed that he received an other than honorable (OTH) dischirrge by reason ofa pattern ofmisconduct. He was discharged on 16 September 1997. d. Petitioner submitted enclosures (3) through (5), as evidence ofa post-service diagnosis of PTSD. e. On 14 November 2016, Petitioner requested consideration ofhis case based on an assertion ofan undiagnosed and untreated service connected post-traumatic stress disorder (PTSD). Based on current policy and gnidance, the Board requested an advisory opinion from BUMED, the office having cognizance over the subject matter. The advisory opinion concludes that the request does not have merit and does not warrant favorable action as detailed in the AO, enclosure ( 6). CONCLUSION: Upon review and consideration ofall the evidence ofrecord, and especially in light ofenclosures (3) and (4), the Board concludes that Petitioner's request warrants relief. The Board reviewed Petitioner's application under the gnidance provided in references (b) and ( c ). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose ofthe Secretary ofDefense memorandum is to ease the process for veterans seeking redress and assist the Boards in reaching fair and consistent results in "these difficult cases." The memorandum describes the difficulty veterans' face on upgrading their discharges based on claims ofpreviously unrecognized PTSD. The memorandum further explains that since PTSD was not previously recognized as a diagnosis at the time ofservice for many veterans and the diagnoses were often not made until after service was completed, veterans were constrained in their argnments that PTSD should be considered in mitigation for misconduct committed or were unable to establish a nexus between PTSD and the misconduct underlying their discharge. Based upon his record of service, relief in the form ofan upgrade to his characterization of service is warranted. His discharge should be changed to general. The Board notes Petitioner's misconduct and does not condone his actions. However, the Board's decision is based on Petitioner's evidence as reflected in his post-service PTSD diaguosis. Although the BUMED AO states, in part, that PTSD or other mental health conditions did not contribute to his misconduct, the Board concluded that the PTSD condition existed at the time ofhis misconduct, and subsequently resulted in his OTH discharge. After carefully considering all the evidence, the Board felt that Petitioner's assertion ofPTSD mitigated the misconduct he committed while on active duty since his condition outweighed the severity of the misconduct. With that being determined, the Board concludes that no useful purpose is served by continuing to characterize the Petitioner's service as having been under other than honorable conditions and re-characterization to a general discharge is now more appropriate. In view ofthe foregoing, the Board finds the existence ofan injustice warranting the following corrective action. RECOMMENDATION: Petitioner's naval record be corrected to show that he received a general discharge on 16 September 1997. Petitioner be issued a new Certificate ofRelease or Discharge from Active duty (DD Form 214). A copy ofthis Report of Proceedings be filed in Petitioner's naval record. Upon request, the Department ofVeterans Affairs be informed that Petitioner's application was received by the Board on 18 February 2016. 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. The foregoing action ofthe Board is submitted for your review and action.