DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S COURTHOUSE ROAD, SUITE 1001 ARLINGTON VA 22204-2490 Docket No: 2216-18 APR 24 2019 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) 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" (c) PDUSD memo of24 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" (d) 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" (e) USO memo of25 Jul 18, "Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations" Encl: (1) DD Form 149 (NR20180002216) (2) Advisory Opinion of 1 Oct 18 ltr of 7 Nov 18 1. Pursuant to reference (a), and in accordance with enclosure (1), the Board for Correction of Naval Records (BCNR) considered Petitioner's request for correction to his military record. The BCNR also considered Petitioner's available service records and an advisory opinion (AO), enclosure (2). 2. Petitioner, a former enlisted member of the Marine Corps, requests that BCNR upgrade his other than honorable (0TH) discharge characterization to an honorable (HON) characterization of service as well a change to his separation code, narrative reason for separation, and reentry (RE) code, to reflect an honorable discharge. Petitioner states that he was suffering from undiagnosed post-traumatic stress disorder (PTSD) at the time of his discharge. The Board reviewed Petitioner's assertions and applied liberal consideration in accordance with the current guidance regarding discharge reviews for veterans who suffer from PTSD or mental health conditions. Refs (b)-(d). Additionally, the Board reviewed Petitioner's request in light of the Department of Defense's most recent equity, injustice, and clemency guidance. Ref (e). 3. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 17 January 2019 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, relevant portions of Petitioner's naval service records, court filings made by Petitioner regarding his requests for relief from the Department of the Navy, and applicable statutes, regulations, and policies. The Board also considered the AO of 23 October 2018 and Petitioner's 7 November 2018 rebuttal to the AO. 4. 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 of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 1 August 2005. d. Petitioner served one combat tour of duty in, in 2007. On 24 April 2007, while on deployment with , three of his fellow Marines were killed. Petitioner notes that, following the loss, he struggled with survivor's guilt and subsequently volunteered daily to drive route clearance missions. e. Petitioner states that returning home was the hardest part of his deployment and that he struggled with anxiety, depression, panic attacks, and survivor's guilt. f. In January 2008, Petitioner tested positive for a controlled substance (cocaine). On 15 February 2008, a summary court-martial (SCM) convicted him of violating Uniform Code of Military Justice (UCMJ) Article 112a (wrongful use of a controlled substance). Petitioner had first indicated that someone put cocaine in his drink. Petitioner later stated, however, that he smoked cocaine in the bathroom of a club. g. On 11 July 2008, Petitioner was formally counseled for refusing substance-abuse treatment at Naval Hospital. h. Petitioner was discharged from the Marine Corps on 22 August 2008 by rerason of misconduct with an other than honorable (0TH) characterization of service and a reentry (RE) code of RE-4B. i. On 2 August 2011, the Naval Discharge Review Board (NDRB) conducted a document review and determined that Petitioner's discharge was proper as issued and that no change is warranted. j. Petitioner sought assistance from the Department of Veterans Affairs (DVA). It appears that his application was initially denied service connection for PTSD. On 15 May 2012, the VA noted that it received Petitioner's disagreement with its decision to deny service connection for PTSD. k. On 5 November 2013, Petitioner was examined by the DVA for PTSD. On 11 February 2014, the DV A issued a 100% service-connection rating to Petitioner due to PTSD, noting his disorientation to place, time, inability to establish and maintain effective relationships, spatial disorientation, assessment of current mental functioning, difficulty in establishing and maintaining effective work and social relationships, impaired judgment, panic attacks more than once a week, chronic sleep impairment, depressed mood, mild memory Joss, and anxiety. 1. On 13 September 2016, the NDRB conducted a document review and determined that Petitioner's 0TH characterization of service should remain, the narrative reason for separation should remain misconduct with the corresponding separation code of HKK, and the RE code should remain RE-4B. m. In his application, Petitioner states that, the night of his wrongful use, he tried a small amount of cocaine and that, although he does not recall much from that night, he takes full responsibility for his actions. He also contends that the character of his discharge is unjust in light of his PTSD diagnosis. n. In support of his application for correction, Petitioner submits a May 2018 treatment summary from the DVA in which it is noted that he has been receiving treatment for intrusive symptoms following his combat experience in Iraq. o. As part of the Board's review, a licensed clinical psychologist reviewed Petitioner's assertions and the available records, and issued an AO dated 23 October 2018. The AO opines that the DVA's PTSD diagnosis and 100% disabled rating is inconsistent with Petitioner's accomplishment of completing college and being employed post-service. The AO considered Petitioner's PTSD diagnosis but states that a review of the complete DVA treatment record is required to provide a medical opinion as to whether the Petitioner's diagnosed PTSD can be attributed to military service. The AO notes that cocaine use post-combat deployment could be attributed to PTSD as risk-taking behavior but, based on the evidence available, there is insufficient evidence that Petitioner's PTSD diagnosis should be attributed to military service. p. The Board, in its review of Petitioner's entire record and application, carefully weighed all potentially mitigating factors, such as the DVA's determination of Petitioner's service-connected PTSD and his subsequent treatment by the DVA. Petitioner's requests and contentions were fully and carefully considered by the Board in light of references (b) through (e). The Board also reviewed the supporting information submitted by Petitioner, including Petitioner's rebuttal to the AO. q. The Board noted the AO's opinion that Petitioner's post-service achievements are inconsistent with a 100% disability rating, but found persuasive Petitioner's explanation that focus and commitment to a goal such as higher education helps him deal with his symptoms of PTSD. MAJORITY CONCLUSION The majority of the Board found that, although Petitioner's service-connected PTSD does mitigate his misconduct, his PTSD does not absolve him of complete accountability for his conduct. The majority noted Petitioner pleaded guilty to wrongful use of cocaine and admitted guilt before the SCM. Furthermore, Petitioner took responsibility for his actions in his petition to the Board. The majority noted Petitioner's DVA diagnosis and disability rating, and found that, in light of his mental health conditions, his characterization of service should be upgraded to a general (under honorable conditions). The majority determined that the seriousness of Petitioner's misconduct and his providing contradictory stories as to that use merits an upgrade to general rather than an honorable characterization of service. With regard to Petitioner's narrative reason for separation, separation authority, and separation (SPD) code and RE-4, the majority determined that no change is warranted. Although the majority found that the PTSD mitigated Petitioner's misconduct, the Board determined that corrective action should not extend beyond the service characterization being upgraded to general. The majority based its determination on the nature of Petitioner's misconduct as well as his providing conflicting versions of how the cocaine got into his system. MAJORITY RECOMMENDATION: That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, to show he was discharged with a general characterization of service. That a copy of this report of proceedings be filed in Petitioner's naval record. That, upon request, the DVA be informed that Petitioner's application was received by the Board on 7 February 2018. MINORITY CONCLUSION The minority disagreed with the majority and found that no change is warranted. The minority considered Petitioner's service record, his deployment to Iraq and the AO, and found that there was insufficient evidence to establish that Petitioner's wrongful use of cocaine at a club was mitigated by his service-connected PTSD. The minority noted that Petitioner's personal statements immediately following the positive urinalysis indicate that Petitioner was at a club engaging in a social outing when he wrongfully ingested a controlled substance. The minority found that Petitioner is not entitled to an upgrade based on the fact that his actions cannot be connected to PTSD. MINORITY RECOMMENDATION That no corrective action be taken. That, upon request, the DVA be informed that Petitioner's application was received by the Board on 7 February 2018. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)), 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.