DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10193-17/10079-06 MAR 14 2019 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) BCNR Exec Dir ltr WMP Docket No: 8484-02 of 5 May 03 (c) BCNR Exec Dir ltr WMP Docket No: 10079-06 of 22 Mar 07 (d) SECDEF memo of 3 Sep 14 "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD" (e) PDUSD memo of 25 Aug 17 "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" (f) PDUSD memo of 24 Feb 16 "Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI" (g) 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 w/attachments (NR20170010193) (2) Advisory Opinion of 31 May 18 (3) Petitioner's rebuttal of 8 Jul 18 (4) Advisory Opinion of 9 Aug 18 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed the enclosure with this Board requesting an upgrade to his characterization of service from other than honorable to general (under honorable conditions) or honorable. 2. The Board reviewed Petitioner's allegations of error and injustice on 28 January 2019, and, pursuant to its regulations, determined that no corrective action should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval service records, and applicable statutes, regulations, and policies. In addition, the Board considered the enclosed 31 May 2018 advisory opinion (AO) furnished by a qualified mental health professional, Petitioner's rebuttal to the AO, and an updated AO furnished by a qualified mental health professional dated 9 August 2018. Enclosures (2) through (4). 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 regulation within the Department of the Navy. b. Although the enclosure was not filed in a timely manner, the Board found it is in the interest of justice to review the application on its merits. c. On 10 November 1981, Petitioner reenlisted in the Marine Corps after two previous periods of honorable active-duty service. Petitioner then served without incident for more than five years, until, on 23 January 1987, a Navy Drug Lab message reported that a sample of his urine collected during a random urinalysis had tested positive for THC (tetrahydrocannabinol, the psychoactive compound in cannabis or marijuana). On 3 February 1987, Petitioner was counseled regarding his illegal drug involvement. Although his separation documents were not available in his service record, an entry in his record reflects that, on 3 February 1987, he was notified of his commanding officer's intent to process him for administrative separation. d. It appears that Petitioner waived his right to a hearing before an administrative discharge board (ADB). As a result, on 3 April 1987, he was discharged by reason of misconduct due to drug abuse with an other than honorable (OTH) characterization of service. e. On 5 May 2003 and 22 March 2007, the Board denied Petitioner's 2002 application and 2006 request for reconsideration, respectively. See references (b) and (c). f. In his most recent request for reconsideration to the Board, enclosure (1), Petitioner requests a change to his other than honorable (OTH) characterization of service to either general (under honorable conditions) or honorable. Petitioner contends that, in light of his otherwise honorable 11 years of service, his post-service good conduct and accomplishments, and his service-connected post-traumatic stress disorder (PTSD), it is unjust to continue to characterize his service as OTH based only on his single instance of marijuana use. g. In support of his request, Petitioner submitted the following new evidence: his written statement of 22 October 2017 detailing a tragic fatal tank accident he witnessed in in 1983; a Letter of Appreciation, dated 29 November 2012, from the Program Manager, Advanced Amphibious Assault, thanking Petitioner for his hard work, dedication, and devotion while working to determine the cause of inadvertent discharges of the Automatic Fire Suppression System; a Certificate of Recognition, dated 19 October 2017, recognizing him as the 2017 Marine Depot Maintenance Command "Civilian Marine of the Year"; his Department of Veterans Affairs (DVA) Summary of Benefits, dated 19 November 2017, reflecting his combined service-connected disability evaluation of 40 percent; and his Inspection Certification Program Certificate dated 8 September 2016. Later, as supplemental evidence, Petitioner submitted his DVA rating decision letter, dated September 2002, which reflected his PTSD diagnosis, and incomplete treatment notes from the Loma Linda DVA Medical Center. After he was provided the first AO from a qualified mental health professional, Petitioner submitted additional evidence in rebuttal, which included his additional written statement, dated 8 July 2018, and additional clinical evidence from the DVA. h. The Board considered Petitioner's request in light of the Secretary of Defense's memorandum, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder" of 3 September 2014, reference (d), and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017, reference (e). i. As part of the Board's review, a qualified Navy mental health professional also reviewed Petitioner's request and provided the Board with an AO regarding his assertion that he suffered from PTSD. The AO noted that the Loma Linda DVA documents represented only a partial compilation of Petitioner's treatment, that there were no records verifying that he received disability for service-connected PTSD, and that the records contained a single note that reflects that Petitioner witnessed a casualty-producing motor vehicle accident (MVA) while in the military, and that he was abused as a child, which, the AO speculated, could be the reason for PTSD, if Petitioner did in fact have symptoms of PTSD. The AO concluded, however, that the records Petitioner submitted were not sufficient to support a medical opinion, noting that, at that time, his record did not indicate behaviors associated with PTSD, and that his misconduct thus could not be attributed to PTSD or a PTSD-related disorder. See enclosure (2). j. In response to the AO, Petitioner submitted a rebuttal statement detailing the circumstances surrounding his use of marijuana. Petitioner acknowledged that, on New Year's Eve, at a party at a local bar, he used marijuana. In his response, Petitioner also submitted clinical evidence, which included 88 pages of additional DVA records. See enclosure (3). k. The Board then obtained a second AO from a qualified Navy mental health professional. In light of the additional records, this AO noted that Petitioner had been diagnosed with PTSD, adding that the etiology and symptoms of the PTSD diagnosis were consistent with Petitioner's original contention that he had witnessed a traumatic event. The AO further concluded that Petitioner's post-service diagnosis of PTSD could be attributed to his military service, adding that it is plausible that the traumatic event he witnessed and the resulting PTSD symptoms could have mitigated the misconduct that ultimately led to his unfavorable discharge characterization. See enclosure (4). CONCLUSION: The Board, however, determined that the additional documentation Petitioner submitted, even though not previously considered by the Board, was insufficient to establish the existence of probable material error or injustice. The Board weighed all potentially mitigating factors, such as Petitioner's post-service accomplishments, the AOs, his rebuttal, the VA documentation, and his desire to upgrade his characterization of service, as well as his contentions that his discharge is unjust because it was based only on one offense in 11 years, and that he should have been given a general or honorable characterization of service. The Board, however, concurred with the AOs and found that, although there is sufficient evidence to support Petitioner's contention that his post-service diagnosis of PTSD can be attributed to his military service and could have mitigated the misconduct that led to his OTH discharge, his original service record was incomplete and did not contain any documentation pertaining to his separation from the Marine Corps other than his Certificate of Release or Discharge from Active Duty (DD 214). The Board relied on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. Applicants have the burden or overcoming this presumption. Absent such evidence in this case, the Board presumed that the officials involved in Petitioner's separation acted in accordance with governing law/policy and in good faith. Further, the Board noted that, although the Board of Veterans' Appeals upgraded his discharge status to honorable in order for him to receive DVA benefits for his entire period of active-duty service, including medical treatment, the VA cannot change or upgrade his original characterization of service. The Board noted Petitioner's post-service accomplishments as well as his desire to return to military service and better his life, but concluded that the seriousness of his misconduct could not be overcome by the information in his application. The Majority concurred with the NDRB and found that his discharge was without error or injustice and does not merit corrective action. In view of the above, the Board recommends the following corrective action. RECOMMENDATION: That Petitioner's requests for correction to his record be denied, and that no corrective action be taken. EXECUTIVE DIRECTOR CONCLUSION: In consideration of references (d) through (g), and taking into account the findings of the Board, the Executive Director found that clemency is nevertheless warranted in Petitioner's case. The Executive Director took particular note of Petitioner's diagnosed service-connected PTSD and the traumatic event that contributed to it (witnessing his sergeant friend's death after being "cut in half" in a tank accident while TAD in ), his post-service accomplishments and good conduct (including his employment as a civilian Marine since 2005 and his selection as the Marine Depot Maintenance Command 2017 "Civilian Marine of the Year"), and the circumstances of his one-time marijuana use, which happened over 32 years ago while Petitioner, now in his 60s, was in his mid-20s at a New Year's Eve party at a bar. The Executive Director concluded that, based on the facts of Petitioner's case, clemency is warranted under reference (g). Accordingly, the Executive Director found that Petitioner's record should be changed to reflect an honorable characterization of service. In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, to show he was discharged with an honorable characterization of service. That no further corrective action be taken. That a copy of this report of proceedings be filed in Petitioner's naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 20 November 2017. 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 of the Board is submitted for your review and action. Executive Director