DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6228-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: Ref: (a) 10 U.S.C. § 1552 (b) 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” (c) PDUSD 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 (2) Advisory Opinion (AO) of 15 Apr 19 (3) AO rebuttal of 13 May 19 1. Pursuant to reference (a), Petitioner, a former member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting that his other than honorable (OTH) characterization of service be change to honorable, and that his narrative reason for separation “Frequent Involvement” be changed to “Secretarial Authority.” 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 30 September 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 the enclosures, relevant portions of the naval records, as well as applicable statutes, regulations, and policies, post-service diagnosis, enclosure (2), an advisory opinion (AO) provided by a qualified Navy mental health professional, and enclosure (3) Petitioner’s rebuttal to the AO. 3. 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. Petitioner enlisted in the Marine Corps and began a period of active duty on 6 December 1976. While in Recruit Training, he received two nonjudicial punishments for failing to obey lawful orders, taking food out of the mess hall, and talking and laughing while on firewatch duty. On 21 September 1977, Petitioner was counseled concerning his substandard performance. On 12 December 1977, he received NJP for being absent from his appointed place of duty. On 15 December 1977 and 16 November 1978, he was counseled about his failure to comply with orders and instructions, and lack of demonstrated leadership characteristics. During the period from 22 December 1978 to 20 November 1979, Petitioner received five nonjudicial punishments. His offenses included four instances of unauthorized absence, two instances of disobeying a lawful order, and larceny of a bicycle. On 10 January 1980, he was counseled concerning his continued lack of satisfactory performance. On 19 March 1980, he was admitted to a Navy hospital for an apparent over dose of Benadryl and Motrin. On 5 April 1980, he received his ninth NJP for using disrespectful language. On 7 April 1980, Petitioner was notified of a pending administrative action to separate him from the naval service due to his frequent involvement with military authorities of a discreditable nature. After being afforded his procedural rights, he elected not to have his case heard before an administrative discharge aboard. On 8 April 1980, his commanding officer forwarded his case to the separation authority stating that although a Neuropsychiatric evaluation recommended that Petitioner be discharged for unsuitability due to his character and behavior disorder, a stronger case existed for him to be discharged by reason of misconduct. His CO “strongly recommended that Private Brown be separated from the Marine Corps with a discharge under other than honorable conditions.” On 18 April 1980, the separation authority approved the CO’s recommendation, and directed Petitioner’s separation under other than honorable (OTH) conditions for misconduct due to frequent involvement with military authorities. c. Petitioner contends that he had a reduced total capacity to serve at the time of his misconduct that led to this discharge, as he was suffering from mental illness, exacerbated by his military service as well as family and personal problems. He also believes that he was the subject of arbitrary and capricious treatment at the hands of his chain of command. His command elected to administratively discharge him for misconduct less than a week after his suicide attempt, despite the command’s admission that a discharge due to mental illness also would have been appropriate. d. Enclosure (2), an AO from a qualified Navy mental health professional states, in part, that a 2018 evaluation from a civilian psychologist, who reviewed the Petitioner’s history and record, opined that Petitioner was suffering from Major Depressive Disorder and Schizotypal Personality Disorder during his military service. Petitioner also submitted a personal statement that he attempted suicide in high school when his girlfriend broke up with him, but he did not seek treatment and was not diagnosed with a mental health condition until 2018. Following his high school break up, Petitioner joined the Marines to make a new start. He stated that he struggled in his first duty station in but performed well and received two rank advancements at his second duty station in . After returning to for his third duty station, he experienced a second relationship termination, which resulted in a suicide attempt in March 1980. Petitioner stated that since his discharge from the Marines, he has experienced difficulties with substance abuse, employment, and he was incarcerated for arson for a period of time. However, he stated that he has worked to improve his life, has maintained steady employment, and has not abused drugs or alcohol since 2015. Petitioner has a mental health diagnoses of Major Depressive Disorder and Schizotypal Personality Disorder. The available evidence suggests that these mental health conditions should not be attributed to military service, as Petitioner was likely experiencing them prior to entering service. However, there is evidence that Petitioner was experiencing these mental health conditions during his military service. In-service, he was evaluated by a military mental health clinician who acknowledged that he was experiencing a character and behavior disorder. This evaluation is consistent with Petitioner’s recent post-service evaluation by a civilian psychologist. It is reasonable to attribute the majority of the Petitioner’s military misconduct to his mental health conditions. Schizotypal Personality Disorder is characterized by a pattern of social deficits and odd behaviors that could account for Petitioner’s minor misconduct, including removing food from the mess hall against instructions and talking while on watch. Major Depressive Disorder could account for the Petitioner’s many instances of brief periods of UA. Psychomotor retardation (visibly slowed movements), loss of energy, and difficulty concentrating are all symptoms of depression, any one of which could account for Petitioner’s multiple late arrivals. However, it is difficult to consider how larceny of a bicycle should be attributed to Petitioner’s mental health concerns. Based on the available evidence, there is evidence that Petitioner was suffering from a mental health condition during his military service and that most, but not all, of his misconduct could be attributed to his mental health conditions. e. In rebuttal to the AO, Petitioner stated that his military service aggravated his illness, and the Kurta Memo, reference (b), notes that liberal consideration is appropriate in situations of pre- existing conditions. f. Petitioner’s request was fully and carefully considered by the Board in light of references (b) and (c). CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. The Board reviewed his application under the guidance provided in references (b) and (c). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. In this regard, based upon his record of service, relief in the form of his characterization of service be changed to “General (under honorable conditions).” The Board’s decision is based on enclosure (2) and (3), as reflected by comments that Petitioner was suffering from a mental health condition during his military service and concluded that most, but not all, of his misconduct could be attributed to his mental health conditions. Notwithstanding the corrective action recommended below, the Board was not willing to change the reason for Petitioner’s discharge from the Marine Corps. The Board noted his misconduct, resulted in nine NJP’s, numerous counseling sessions, and warnings by his superiors of the consequences of further misconduct. RECOMMENDATION: In view of the above, the Board finds the existence of an injustice warranting the following partial corrective action: That Petitioner’s naval record be corrected to show that on 25 April 1980, he received a general (under honorable conditions) discharge. That Petitioner be issued a DD Form 215, Correction to DD Form 214 Certificate of Release or Discharge from Active Duty. That no further changes be made to the Petitioner’s record. 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 29 June 2018. 4. It is certified that 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 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 of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.