DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD. SUITE 1001 ARLINGTON, VA 22204-2490\ Docket No: 4505-18 AUG 2 7 2019 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) SECDEF memo, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD," of 3 September 2014 (c) PDUSD memo, "Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI," of24 February 2016 (d) PDUSD memo, "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," of 25 August 201 7 (e) 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 (2) Advisory Opinion, MLCS Docket No: NR20180004505 of 30 Nov 18 (3) ltr of 22 Feb 19 (4) Updated Advisory Opinion, MLCS Docket No: NR20180004505 of 22 May 19 (5) ltr of 24 Jun 19 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his Certificate of Release or Discharge from Active Duty (D D F orrn 214) be changed to reflect an upgrade to his characterization of service from bad conduct to either honorable or general. Petitioner also requested that his DD Form 214 be changed to reflect foreign service between April 1998 and July 1998, when he served as part of 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 18 July 2019 and, pursuant to its regulations, determined on the available evidence of record the corrective action indicated below should be taken. As noted below, the Executive Director believes that additional relief is appropriate. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval service records, and applicable statutes, regulations, and policies, as well as the enclosed 30 November 2018 advisory opinion (AO) from a qualified Navy mental health professional, Petitioner's 22 February 2019 rebuttal submission, an updated 22 May 2019 AO, and Petitioner's rebuttal to the updated AO. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, found 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 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 service on 28 November 1994. He served without disciplinary incident until 14 June 1999, when he was convicted, pursuant to his pleas, by special court-martial (SPCM) of two specifications of failure to go to his appointed place of duty, a one-day unauthorized absence (UA), a UA from 26 April 1999 to 21 May 1999, disobeying a lawful order from a sergeant, violating a lawful order by having various weapons and ammunition in his barracks room, wrongfully wearing an earring, wrongfully having a tattoo placed on his chin, failing to pay his just debts, and wrongfully using cocaine. Petitioner was sentenced to confinement, forfeiture, reduction in rank, and a bad­conduct discharge (BCD). The BCD was subsequently approved at all levels of review, and, on 23 July 2001, he was discharged. d. Petitioner contends his discharge was inequitable, and he is deserving of clemency. (1) Petitioner contends he was diagnosed with PTSD, generalized anxiety disorder, major depressive disorder, and alcohol-use disorder, all conditions that excuse or mitigate his BCD. (2) Petitioner maintains that the one and only time he tried cocaine led to the negative urinalysis that initiated the misconduct that led to his discharge. (3) Petitioner contends the PTSD and other mental health disorders existed and were experienced during his military service. Specifically, he contends that, while deployed to he suffered a traumatic experience, when, one night when performing his duties securing the KC-130 aircraft to which he was assigned, a man whom he believed to be a approached him. In fear for his life, Petitioner engaged in hand-to-hand combat with the and subdued him by hitting him in the head with a 3-cell Maglite. Petitioner states that nothing formal was documented about the encounter. He contends this experience took a toll on him and resulted in symptoms consistent with PTSD. He lived in fear that someone was trying to hurt him, and as a result, he had difficulty trusting anyone. (4) Petitioner contends his behaviors were exacerbated upon his redeployment, when the Marines from his tight-knit unit were transferred to other duty stations or left the military. Where before he could depend on this group for support and understanding, Petitioner became adrift with deteriorating mental health and other changes in his behavior, and the new, younger Marines didn't understand his experiences or recognize his signs of struggle. He became unable to conform to the expectations of the military environment that he had previously conformed to easily. (5) Petitioner contends that PTSD excuses or mitigates his discharge and outweighs his BCD, explaining that the misconduct that led to his discharge was not indicative of his excellent service as a Marine. His misconduct after he returned from deployment shows a Marine attempting to cope with PTSD, unmoored from the strong bonds of the Marines he deployed with and without the professional intervention he needed from the military. After his one-time cocaine use, he contends things spiraled out of control quickly. Knowing that a failed drug test could be a serious offense for which he may be confined to the brig, Petitioner attempted to bring his affairs in order because his off-base girlfriend was pregnant. Attention to these affairs resulted in four UA violations while he cared for his pregnant girlfriend. The final three citations show the difficulties he was experiencing in conforming his behavior to the standards of the military. These actions, which all took place during a period of just six months, should have alerted the military to his mental health struggles instead ofleading to his eventual discharge. None of the acts were premeditated. Although there were multiple instances of misconduct, each of them on their own, aside from the one-time negative urinalysis, were minor. (6) Petitioner contends that his otherwise laudable military service and his post-service conduct render his discharge unreasonably harsh and deserving of clemency. As support, he provided evidence in the form of statements, advocacy letters, newspaper articles, and other documentation to reflect his post-service record of being a man of honor and integrity, a leader in his community, and a philanthropist always seeking to help others in his community. (7) Petitioner contends that, under current policies and procedures, he would likely have been screened and treated for PTSD instead of being discharged. e. As part of the Board's review, a qualified Navy mental health professional reviewed Petitioner's assertions and available records and provided an AO to the Board on 30 November 2018. The AO determined that there was insufficient evidence to attribute all of Petitioner's misconduct to PTSD. The AO noted that his periods ofUA could be considered PTSD avoidance symptoms, but that his earring, tattoo, and failure to pay his credit card debts cannot be attributed to PTSD. The AO added that it is difficult to consider that the weapons stash Petitioner maintained in his barracks room was symptomatic of PTSD. Additionally, the AO noted that, while it is possible the cocaine use could be a reckless behavior, symptomatic of PTSD, post-service treatment records are required to render an opinion. See Enclosure CJ). f. In rebuttal, Petitioner contends that the Board should not apply the same medical certainty standard as was applied in the AO but should apply liberal consideration. Specifically, Petitioner points to the Kurta memo, which allows for other evidence of mental health conditions. Further, Petitioner contends that his inability to conform his behavior was a marked departure from his previous exemplary service, which is itself evidence of his PTSD that must be considered by the Board. Moreover, Petitioner contends that his piercings and tattoos can be attributed to PTSD and/or maladaptive stress, and that his weapons stash, a symptom of hypervigilance, can also be attributed to PTSD. Petitioner provided research articles in support of each contention raised in the rebuttal. Additionally, Petitioner provided evidence of continued selfless acts in his community and treatment for PTSD and major depressive disorder. See Enclosure .(3). g. The qualified Navy mental health professional reviewed Petitioner's rebuttal and, noting that clinical evidence had not been introduced regarding Petitioner's misconduct and emerging PTSD symptoms, concurred with her original AO. See enclosure (jj. In rebuttal to the updated AO, Petitioner contends he has adequately shown evidence of PTSD and other mental health conditions at the time of his service, and that this evidence, along with the testimonial, historical, legal, and social evidence, is enough for the Board to find the existence of PTSD and/or other mental health disorders during his military service. See enclosure f5). CONCLUSION: Upon review and consideration of all the evidence of record, the Board concluded that Petitioner's request warrants relief. The Board reviewed Petitioner's 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 this policy. The Board determined that there was insufficient evidence to support a finding that Petitioner's PTSD can be attributed to his military service. Specifically, the Board did not find credible Petitioner's statement regarding his traumatic experience while deployed to Board concluded that, in a situation in which a suspected Serbian militant attacked, on base, a Marine who was securing a KC-130 aircraft, corroborating evidence, such as a report in a watch log, medical treatment notes for Petitioner or the injured militant, a statement from one of his tight-knit fellow Marines whom Petitioner spoke to after the experience, or treatment notes in which Petitioner has discussed the traumatic experience with his therapist, should be readily available. However, the Board determined that, in the interest of justice, Petitioner's request to upgrade his characterization of service warrants partial relief. Noting his average pro/con marks of 4.2/4.2 for his enlistment, the Board concluded that a BCD was too severe a punislunent for a one-time drug use and other minor offenses. In addition, the Board relied upon his numerous selfless post­service contributions to his community. The Board thus determined that his characterization of service should be other than honorable. In the interest of justice, the Board further concluded that Petitioner should receive additional relief in the form of corresponding changes to his narrative reason for separation, separation code, and separation authority. Additionally, the Board reviewed Petitioner's request to have his DD Form 214 changed to reflect foreign service between April 1998 and July 1998, but noted that block 12f of the DD Form 214 does not include service performed outside the continental United States while on deployment. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD form 214) indicating his characterization of service as "other than honorable," the narrative reason for separation as "secretarial authority," the separation code as "JFFl," and the separation authority as "MARCORSEPMAN 6421." That no further changes be made to Petitioner's record. A copy of this report of proceedings be filed in Petitioner's naval record. Upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 16 May 2018. EXECUTIVE DIRECTOR CONCLUSION: Taking into account the findings of the Board, the Executive Director found that additional corrective action is warranted in Petitioner's case, in consideration ofreferences (b) through (d), which the Board considered, and reference (e), which it appears the Board did not. The Executive Director took particular note of-and gave liberal consideration to-Petitioner's diagnoses of service-related PTSD, generalized anxiety disorder, major depressive disorder, and alcohol-use disorder, and the AO's acknowledgement that some of his misconduct can be attributed to PTSD. The Executive Director also noted Petitioner's almost four years of otherwise exemplary service that preceded his misconduct. Applying liberal consideration, the Executive Director determined that the dramatic change in Petitioner's behavior and performance, his sudden inability to conform his behavior to the expectations of a military environment, and his substance abuse­and his misconduct itself-all evidence and are mitigated by his service-related PTSD and other mental health conditions. In the Executive Director's opinion, the Board's conclusion is inconsistent with the evidence of record and the guidance in reference (d). In particular, the Board's determination discounts Petitioner's sworn account of his in-service trauma and PTSD, requires supporting documentary evidence that would be unreasonable or unlikely under the circumstances, and fails to consider evidence that reference (d) specifically describes as probative of the existence of his mental conditions. In addition, the Board appears not to have applied liberal consideration to Petitioner's application, as required. See ref (d), encl. (1), 125 ("Unless otherwise indicated, liberal consideration applies to applications based in whole or in part on matters related to diagnosed conditions ... asserted as justification or supporting rationale for discharge relief."). As a result, the Board appears to not have applied many of the concepts encompassed by liberal consideration. See id., encl. (1), ,-i,-i 26a-k. For example, although "[r]eviews involving diagnosed ... conditions should not condition relief on the existence of evidence that would be unreasonable or unlikely under the specific circumstances," the Board expressly did so, discounting Petitioner's account based on "insufficient" evidence. And, while "[l]iberal consideration does not mandate an upgrade," nevertheless, "[r]elief may be appropriate for minor misconduct commonly associated with mental health conditions, including PTSD," as here. Because Petitioner's misconduct is attributable to his PTSD and mental health conditions and, in the circumstances, is minor, partial relief is appropriate. Although the Board did not find that Petitioner's misconduct is attributable to his PTSD and mental health conditions, the Board expressly determined that partial relief was appropriate because a BCD was too severe a punishment for Petitioner's one-time drug use and his other minor offenses, and directed corrective action. However, the Board's corrective action did not afford Petitioner effective relief, as the Board directed only that his BCD be changed to an 0TH characterization of service (and other conforming changes). A BCD only applies only to enlisted persons and may only be adjudged by a general or special court-martial, while an 0TH characterization of service is administrative in nature. For all intents and purposes, however, a BCD and 0TH characterization of service are indistinguishable. "[A]n other than honorable (0TH) administrative discharge carries with it penalizing effects comparable to a BCD." Frazier v. McGowan, 48 M.J. 828, 832 (C.G. Ct. Crim. App. 1998). Both deprive a Service member of substantially all benefits administered by the Department of Veterans Affairs and the Marine Corps. Both are deliberately stigmatizing. See, e.g., Cooney v. Dalton, 877 F. Supp. 508,515 (D. Hi. 1995) (''[T]he designation of the discharge as 'other than honorable' and as a bad conduct discharge will stigmatize the Plaintiff in a manner similar to a criminal conviction. This creates significantly more prejudice than the 'general discharge."'). Both will place limitations on employment opportunities and will deny its bearer other advantages which are enjoyed by one whose discharge characterization indicates that he or she served honorably. In short, both will affect a Service member's future with regard to his or her legal rights, economic opportunities, and social acceptability. See Kauffman v. Sec '.Y of the Air Force, 415 F.2d 991,995 (D.C. Cir. 1969) ("[A] military discharge under other than honorable conditions imposes a lifelong disability of greater consequence for persons unlawfully convicted by courts martial. 'In terms of its effects on reputation, the stigma experienced by the recipient of a discharge under other than honorable conditions is very akin to the concept of infamy.'") (quoting Everett, Military Administrative Discharges: The Pendul wn Swings, 1966 Duke L.J. 41, 50). Additional-effective-relief is also appropriate under the factors set forth in reference (e), which the Board appears not to have sufficiently considered. In this regard, the Executive Director considered Petitioner's almost four years of otherwise exemplruy service, and his post-service conduct and accomplishments, including his successful entrepreneurship, his community involvement and volunteer activities, and character and reputation. Accordingly, the Executive Director concluded that, based on the facts of Petitioner's case, additional corrective action is warranted. The Executive Director therefore found that Petitioner's record should be changed to reflect a general (under honorable conditions) characterization of service. In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, indicating his characterization of service as general (under honorable conditions), the narrative reason for separation as "secretarial authority," the separation code as "JFFl," and the separation authority as "MARCORSEPMAN 6421." No further corrective action be taken. A copy of this report of proceedings be filed in Petitioner's naval record. Upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 3 January 2018. 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.