DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7379-17 OCT 30 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 remove the 6 December 2015 non-judicial punishment along with restoration ofrank with back pay, rescind and remove his 24 May 2015 administrative separation, placement on the disability retirement list, or, in the alternative, to change his characterization ofservice to Honorable with a disability narrative reason for separation. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 26 October 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 Petitioner's naval records, and applicable statutes, regu!a:tions and policies. 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 regulations within the Department ofthe Navy. b. Petitioner entered service with the Marine Corps Reserve on 7 March 2011. He was on Inactive Duty Training on 25 June 2015 when he sustained severe injuries, to include Traumatic Brain Injury (TBI), that were incurred in the line ofduty, not due to misconduct. Despite the determination that his injuries were incurred in the line ofduty, the command investigation also concluded the Petitioner committed collateral misconduct by operating his vehicle while highly intoxicated and being drunk on station. As a result, non-judicial punishment was imposed on Petitioner on 6 December 2015 and Petitioner was reduced in paygrade to E-2 and fined $214. On the same day, Petitioner was also notified ofadministrative separation processing for commission ofa serious offense. He waived his rights to counsel and an administrative board. c. While Petitioner was being processed administratively for misconduct, Petitioner was also being treated for TBI and dual processed through the Disability Evaluation System. His case was forwarded to the Physical Evaluation Board on 15 December 2015, nine days after nonjudicial punishment was imposed on him and he was notified ofadministrative separation processing. Despite this fact, the command asserted in their 12 April 2016 recommendation for administrative separation discharge letter that Petitioner was not suffering from TBI. d. Neurological evaluations from 17 May 2016 determined that Petitioner was suffering from moderate TBI with cognitive impairment. He was assessed as low average learning, forgetting, and impaired recognition that did not exist prior to 25 June 2015. His MRI from 8 December 2015, two days after his non-judicial punishment and administrative separation notification, showed evidence ofbrain damage that supported his neurocognitive weaknesses. e. Relying on the command's assertion that Petitioner did not suffer from TBI, the separation authority approved Petitioner's administrative separation on 4 May 2016. Petitioner was separated on 24 May 2016 with an Other than Honorable characterization of service due to commission ofa serious offense. However, he was subsequently returned to active duty after a determination was made he was not medically fit for separation. f. On 23 June 2016, the PEB found Petitioner unfit for continued naval service due to TBI and rated his condition at 70%. CONCLUSION Upon review and consideration ofall the evidence ofrecord, the Board finds the existence of errors warranting the following partial corrective action. The Board concluded that non-judicial punishment was improperly imposed on Petitioner. There is significant medical evidence that supports a finding that Petitioner was suffering from TBI on 6 December 2015. His MRI from 8 December 2015 indicated he suffered from brain damage and served as part ofthe basis for his referral to the PEB for TBI. In the Board's opinion, the collective cognitive impairments resulting from the TBI made Petitioner incompetent to understand and exercise his rights associated with the non-judicial punishment proceedings and the command had an obligation to consult with medical professionals prior to proceeding with the proceedings. Failure ofthe command to consult with medical personnel to determine Petitioner's competence created a fatal flaw in the proceedings that requires the non-judicial punishment of6 December 2015 to be expunged from Petitioner's record and restore all associated rank, pay, and benefits that were lost as a result ofthe proceedings. Further, the Board concluded a substantial error was also made in the administrative separation processing of Petitioner. In the command's 12 April 2016 letter to Commanding General, Headquarters , an incorrect assertion is made that Petitioner is not suffering from TBI. This false information was later used to approve Petitioner's administrative separation on 4 May 2016. The Board determined this was an error that invalidates Petitioner's administrative separation. The fact Petitioner was suffering from moderate TBI that created significant cognitive impairments was crucial information that the Commanding General required prior to making his decision whether to approve the command's recommendation for administrative separation ofthe Petitioner. In the Board's opinion, the Commanding General's decision was not based on accurate information and could have differed had the true nature of Petitioner's TBI condition been presented for consideration. Based on this finding, the Board felt it appropriate to also expunge Petitioner's administrative separation from his record to allow the Marine Corps to reconsider whether it is appropriate to administratively process the Petitioner for misconduct. RECOMMENDATION: That Petitioner's naval record be corrected, where appropriate, to show that: Petitioner's non-judicial punishment of6 December 2015 is expunged from his record. That any resulting actions from the non-judicial punishment proceedings that affected his paygrade, pay, and benefits be restored as of6 December 2015. · Petitioner's administrative separation of24 May 2016 is rescinded, his administrative separation documents are expunged from his record, and that he was retained on active duty to receive treatment for his medical condition. A copy ofthis Report ofProceedings will 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 ofthe Board's proceedings in the above entitled matter. 5. Pursuant to the delegation ofauthority set out in Se 6(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 ofreference (a), has been approved by the Board on behalfofthe Secretary ofthe Navy. Executive Director