DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8858-17/ From: Chairman, Board for Correction ofNaval Records To: Secretary ofthe Navy Subj: REVIEW OF NAVAL RECORD OF FORMER Ref: (a) 10 U.S.C. §1552 (b) SECDEF Memo of3 Sep 14 "Supplemental Guidance to Military Boards 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" (d) PDUSD Memo of25 Aug 17 "Clarifying Guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records Considering Requests by Veterans for Modification oftheir Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" Encl: (1) DD Form 149 (2) BCNR Ltr DS Docket No: 8858-17 of20 Nov 17 (3) Subject's naval record (excerpt) 1. Pursuant to the provisions ofreference (a), Petitioner, a former filed enclosure (1) with this Board requesting reconsideration that his other than honorable characterization ofservice be upgraded in light ofcurrent guidelines as reflected in references (b) through ( d). His case was reconsidered in accordance with Board for Correction ofNaval Records procedures that conform to Lipsman v. Secretary o[Armv. 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board, consisting of , reviewed Petitioner's allegations oferror and injustice on 22 November 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 ofthe naval records, applicable statutes, regulations, policies, and an advisory opinion (AO) provided at enclosure (2). 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 enlisted in the Marine Corps and began a period ofactive service on 21 May 2001. On 9 September 2001, he sustained two Grade 3 concussions as a result ofa training accident. The record shows that he experienced post concussive symptoms, including headache, nausea, sleep onset and maintenance difficulties, increased irritability, decreased concentration and memory, positional vertigo, and decreased appetite. Due to his extensive history of concussion injuries, it was recommended that he refrain from any strenuous activity. On 5 December 2001, he was counseled for underage drinking in the barracks. On 6 September 2002, he received nonjudicial punishment (NJP) for being absent from his unit and underage drinking. During the period from 30 January to 4 June 2003, he participated in Operation Enduring Freedom and Operation Iraqi Freedom. On 23 February 2004, he deployed again in support of Operation Iraqi Freedom until 14 April 2004, when he was involved in an accident that resulted in a fractured pelvis and other injuries that required a medical evacuation. Subsequently, he was prescribed medication for possible post-traumatic stress disorder (PTSD). On 9 November 2005, he was convicted by general court-martial (GCM) of two specifications of failure to obey an order or regulations. In view ofthe foregoing misconduct, administrative discharge action was initiated. Petitioner elected to waive his procedural rights, and his Commanding Officer forwarded his case, recommending an other than honorable (OTH) discharge by reason ofmisconduct due to a pattern ofmisconduct. On 20 December 2006, he received another NJP for insubordinate conduct, failure to obey an order or regulation, destruction ofnon-government property, and larceny. On 30 March 2006, the separation authority directed an OTH discharge due to misconduct by reason ofa pattern ofmisconduct, and he was discharged on 24 April 2006. c. Petitioner contended that his physical and mental condition was not properly diagnosed or taken into account at the time ofhis discharge. Further, new policies are in effect that change the outlook on the condition ofhis mental status at the time ofhis discharge. d. The AO at enclosure (2) opined that based on the preponderance ofthe evidence, there is sufficient evidence to support that Petitioner suffered from an in-service traumatic brain injury (TBI) and PTSD which complicated his prior diagnosis of Personality Disorder and alcohol abuse and ultimately interfered with his judgement and contributed to his misconduct. CONCLUSION Upon review and consideration ofall the evidence ofrecord, and especially in light ofenclosures (1) and (2), the Board concluded that Petitioner's request warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through ( d). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. 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 diagnoses were often not made until after service was completed, veterans were constrained in their arguments 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. The Board notes Petitioner's misconduct and does not condone his actions. However, the Board's decision is based on Petitioner's evidence, to include his in-and post-service diagnoses and the AO provided at enclosure (2). The Board was able to reasonably conclude that the TBI and 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 should mitigate the misconduct he committed while on active duty since this condition outweighed the severity ofthe misconduct. The Board concluded that no useful purpose is served by continuing to characterize the Petitioner's service as having been other than honorable, and recharacterization to a General (under honorable conditions) is the most appropriate characterization ofservice. RECOMMENDATION In view ofthe foregoing, the Board finds the existence ofan injustice warranting the following corrective action. Petitioner's naval record be corrected to show that he was discharged with a General (under honorable conditions) characterization ofservice on 24 April 2006, vice the other than honorable discharge actually issued on that day. Petitioner be issued a new DD Form 214. A copy ofthis Report ofProceedings 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 6 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 ofthe Board's proceedings in the above entitled matter. 5. Pursuant to the delegation ofauthority set out in Section 6(e) ofthe revised Procedures ofthe Board for Correction ofNaval Records (32 Code ofFederal Regulation, 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 peen approved by the Board on behalf ofthe Secretary ofthe Navy. Executive director