Docket No: From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER 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 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” (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) USD memo of 25 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 (NR2018002580) (2) DD Form 149 (NR20170002683) (3) BCNR, Advisory Opinion, dtd 1. Pursuant to the provisions of reference (a), and in accordance with enclosure (1), the Board for Correction of Naval Records (BCNR or Board) considered Petitioner’s request for correction to his military record. Petitioner previously petitioned the Board, enclosure (2), and was advised in BCNR’s letter of , application had been denied. His request for reconsideration was reviewed in accordance with Board of Correction of Naval Records procedures that conform to Lipsman v. Secretary of the Army, 335 F.Supp.2d 48 (D.D.C. 2004). The Board’s reconsideration included a review of Petitioner’s available service records and relevant Advisory Opinion (AO), enclosure (3). Petitioner, a former enlisted member of the Marine Corps, requests that BCNR reinstate him to the paygrade of). Petitioner contends that he was suffering from Post Traumatic Stress Disorder (PTSD), as evidenced by his post-service treatment record. 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 and/or mental health conditions. Ref. (b) - (d). The Board also reviewed Petitioner’s request in light of the Department of Defense’s most recent equity, injustice, and clemency guidance. Ref. (e). 2. The Board, consisting of, reviewed Petitioner’s allegations of error and injustice on 10 June 2019, and, pursuant to its regulations, determined that the partial corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of enclosure (1), 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, and the relevant 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. 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 service on. Petitioner served without disciplinary incident for over six months. On, Petitioner received nonjudicial punishment (NJP) for seven days of unauthorized absence (UA). Between, Petitioner participated in five different combat operations in Vietnam. d. In, Petitioner was found guilty in special court martial of violating Article 86 of the Uniform Code of Military Justice for a period of 82 days. Petitioner was sentenced to reduction in rank to E-1, confinement for four months, and forfeiture of $35 pay per month for 4 months. e. Petitioner was discharged from the Marine Corps on, on the basis of the convenience of the government, and received an honorable characterization of service and a reentry (RE) code of RE-4. He held the rank of private (E-1) at the time of discharge. f. Following his discharge, Petitioner received a 100% disability rating from Veteran’s Affairs (VA) for chronic PTSD. The VA disability rating noted that Petitioner also has a diagnosis of anxiety and depressive neurosis. g. As part of the review process, a licensed clinical psychologist reviewed Petitioner’s available records and his contentions, and issued an AO that opined that there is evidence to support Petitioner’s contention his misconduct following his deployment to Vietnam, to include his extended period of UA for which he was found guilty at court martial, can be attributed to service-incurred PTSD. The AO was provided to Petitioner, and he was given 30 days to respond. When Petitioner did not provide a response within the 30-day timeframe, the case was submitted to the Board for consideration. h. The Board, in its review of Petitioner’s entire record and application, carefully weighed all potentially mitigating factors, such as the Petitioner’s PTSD diagnosis and his participation in combat operations during the Vietnam War. The Board noted that Petitioner holds an honorable characterization of service and the liberal consideration guidance of references (b)-(d) apply to an upgrade of a servicemember’s characterization of service. However, the Board considered that reference (e) contemplates clemency as a form of relief. CONCLUSION: The Board determined that Petitioner’s misconduct is mitigated by service connected PTSD and that his mental health issues likely contributed to his extended UA which resulted in his loss of rank at special court martial conviction. The Board considered that the previous review of Petitioner’s request for relief at BCNR was denied because the liberal consideration policy did not apply to the reinstatement of rank, but found that based on the specific circumstances surrounding Petitioner’s extended UA, that clemency was appropriate. The Board noted that during the court martial proceedings, Petitioner provided a statement indicating that his wife was experiencing pregnancy-related health issues and that he felt duty-bound to go to her despite being denied leave. In consideration of Petitioner’s PTSD diagnosis, the determination of the AO, Petitioner’s family circumstances at the time of his extended misconduct, and the passage of time since his discharge, the Board determined that a reinstatement of rank to The Board determined that Petitioner is entitled to a reinstatement of rank to lance corporal (E-3). That Petitioner’s relief be limited to reinstatement of rank only, and that no associated pay, benefits, or entitlements accompany the relief. In view of the above, the Board directs the following corrective action. RECOMMENDATION: That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty to show he was discharged in the). 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. 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. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal 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 of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.