DEPARTMENT OF THE NAVY 

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

Docket No: 2202-16 

JAN 03 2017 

From: Chairman, Board for Correction ofNaval Records 
To: Secretary ofthe 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 ofreference (a) Subject, hereinafter referred to as Petitioner,.filed 
enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected 
to be placed on the Permanent Disability Retirement List, to remove various records of 
misconduct in his record, remove his Other than Honorable characterization ofservice, and to 
change the Physical Evaluation Board (PEB) findings in his case. 

2. The Board, consisting of reviewed Petitioner's 
allegations oferror and injustice on 17 November 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 ofthe Navy. 

b. Petitioner deployed three times to combat zones between 17 March 2005 -29 October 
2011 earning two Combat Action Ribbons and a Purple Heart. 

c. A summary court-martial convicted Petitioner for two specifications ofwrongful 
marijuana on 16 December 2013. Charges were referred to a summary court-martial due to a 
pre-trial agreement entered into by the Petitioner. 

d. On 30 January 2014, non-judicial punishment was imposed on the Petitioner for a separate 
incident ofwrongful use ofmarijuana. 

e. Despite the drug related misconduct committed by Petitioner and his eligibility for a 
misconduct related administrative separation, his command supported his referral to the 
Disability Evaluation System. The decision to support his referral stemmed in part from 
Petitioner's diagnosis of Post-Traumatic Stress Disorder (PTSD) for which he received extensive 
treatment about the time he was convicted by the summary court-martial. As a result, his 
disability case was heard by the informal PEB on 5 August 2015 where they determined he was 
fit for continued naval service; a finding that prompted the Petitioner to request a formal PEB 
hearing. 

f. On 25 September 2015, his command recommended Petitioner's administrative separation 
for his drug related misconduct. The Separation Authority eventually approved Petitioner's 
separation on 29 October 2015 despite the finding thathe was suffering from Traumatic Brain 
Iajury and PTSD that may have contributed to his misconduct. Upon approving Petitioner's 
separation, a request was sent on 5 November 2015 to President, PEB to terminate Petitioner's 
disability case. 

g. On 16 December 2015, Petitioner's PEB case was finalized without a finding. 

h. In regard to Petitioner's request for a personal appearance, the Board determined that a 
personal appearance was not necessary and considered the case based on the evidence ofthe 
record.
 
CONCLUSION 

Upon review and consideration ofall the evidence of record, the Board finds the existence of an 
iajustice warranting the following partial corrective action. 

Petitioner made several arguments regarding the lack ofdue process resulting in the erroneous 
findings by the informal PEB and his separation.· The Board did not find those arguments 
persuasive. The Board determined that sufficient evidence exists to show that Petitioner was 
mentally competent and responsible for his misconduct. Therefore, the Board concluded that he 
was properly convicted by the summary court-martial and correctly found guilty at his nonjudicial 
punishment hearing. Based on his drug-related misconduct and his resulting eligibility 
for administrative separation for that misconduct, the Board decided that the Marine Corps had 
the authority to separate him for misconduct vice disability under applicable regulations and 
properly did so under the circumstances. 

The Board also considered his case in light ofthe Secretary ofDefense Memorandum of 
September 3, 2014, Supplemental Guidance to Military Boards ofCorrection ofMilitary/Naval 
Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress 
Disorder. Additionally, the Board applied the guidance contained in the Deputy Under Secretary 
ofDefense's memo of24 February 2016. Upon reviewing the evidence, the Board concluded 
that sufficient mitigation exists to warrant upgrading Petitioner's characterization ofservice to 
General under Honorable Conditions. This decision was based on Petitioner's three combat 
deployments that resulted in his diagnosis and treatment for PTSD. The Board determined there 
was a nexus between his misconduct and his PTSD based on the timing ofhis misconduct in 
relation to his combat deployments. Therefore, the Board felt Petitioner should have the 
opportunity to seek treatment from the Department ofVeterans Affairs via the issuance of a 
upgraded 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 upon his 
discharge on 12 November 2015. No other change to the record is warranted. 

b. A copy ofthis Report ofProceedings 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 true and complete record ofthe Board's proceedings in the above entitled matter. 

5. Pursuant to the delegation ofauthority set t in ( e) of the revised Procedures ofthe 
Board for Correction ofNaval Records (32 Code ofFederal 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 ofthe Secretary ofthe Navy. 


Executive Director