From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF 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 Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (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,” of 24 February 2016 (d) USD Memo, “Clarifying Guidance to Military Discharge Review Boards and 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 2017 (Kurta Memo) (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 (AO) of 4 Jan 21 (3) Petitioner’s rebuttal to AO undated 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his other than honorable (OTH) discharge be upgraded to honorable. Enclosures (1-3) 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 17 February 2021, and pursuant to its regulations, determined that the partial corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (a through e). Additionally, the Board considered the advisory opinion (AO), enclosure (2), furnished by a qualified mental health provider, which was previously provided to Petitioner and Petitioner’s undated rebuttal in response to the AO, enclosure (3). 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 16 February 2002. c. On 29 November 2003 and 4 January 2004, Petitioner committed a battery with serious bodily injury upon two separate civilians. d. On 6 May 2004 Petitioner was found guilty of two charges (assault with a deadly weapon with great bodily injury, and battery with serious bodily injury) resulting from the January 2004 incident. He was scheduled to be sentenced on 17 June 2004. e. On 13 May 2004 Petitioner pled “no contest” to assault with means to produce great bodily injury for the November 2003 incident. Sentencing was scheduled for 14 June 04. f. On 14 May 2004 as a result of Petitioner’s civilian conviction, his Company Commander forwarded a recommendation for Petitioner’s separation with an other than honorable (OTH) characterization of service to the Battalion Commander. In his recommendation, the Company Commander noted that since Petitioner was found guilty of these serious offenses, Petitioner had proven he was not suited for further military service, had a lack of respect for civil law and a pattern of violent fighting, and that an expedient separation was appropriate. g. On 24 May 2004 Petitioner’s case was forwarded to the separation authority. h. On 8 June 2004 Petitioner referred himself to the Substance Abuse Control Officer (SACO) for an alcohol related incident which occurred off base. However, he subsequently refused treatment by SACO personnel. i. On 9 June 2004 the SACO assisted Petitioner in finding an Alcohol Anonymous (AA) meeting that met his schedule, and would not interfere with his civil proceeding. The SACO recommended that Petitioner remain abstinent from alcohol while attending his AA meetings and civil proceedings. j. On 5 September 2004 Petitioner was notified of administrative discharge action by reason of misconduct due to commission of a serious offense. After being afforded his procedural rights, Petitioner elected to have his case heard before an administrative discharge board (ADB). k. On 12 October 2004 an ADB found that Petitioner committed misconduct due to commission of a serious offense, and recommended his separation from the Marine Corps with an OTH characterization of service. l. On 30 November 2004 a Staff Judge Advocate reviewed Petitioner’s case and found it to be sufficient in law and fact. m. On 21 December 2004 Petitioner was separated from the Marine Corps with an OTH characterization of service. n. Petitioner contends that he suffers from Post-Traumatic Stress Disorder (PTSD) as a result of combat that negatively affected his behavior and success in the military, and that he served his country in combat with honor, and believes he earned an honorable discharge. Petitioner asserts he has lived his life with PTSD, and his PTSD contributed to his fighting, which led to his discharge. Additionally, he asserts that he was “fresh back from combat and fought some civilians.” Finally, he states that he has had time to show that he is a good citizen and productive member of society, and provided a copy of his Disability Benefits Questionnaire Medical Report showing his diagnosed PTSD. o. The AO, enclosure (2), concluded that based on the available evidence, it is the medical professional’s opinion that although Petitioner carries a post-discharge diagnosis of PTSD, the preponderance of available objective evidence fails to establish Petitioner was diagnosed with PTSD, suffered from PTSD at the time of his military service, or his in-service misconduct could be attributed to PTSD or other mental health conditions. BOARD CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request merits partial relief in the form of an upgrade to his characterization of service. In this regard, the Board noted Petitioner’s misconduct and does not condone his actions. The Board fully considered the two civilian arrests that were the basis of Petitioner’s administrative separation. The Board also concurred with the AO in that his in-service misconduct could not be attributed to a mental health condition. However, based on the interest of justice in accordance with the spirit and the tenets expressed in the reference (e), the Board felt that clemency in this case was warranted. Specifically, Petitioner’s conduct mark average of 4.4 (prior to incidents of assault) and his military awards [Combat Action Ribbon and Navy and Marine Corps Achievement Medal] for service during Operation Iraqi Freedom indicated his meritorious service in in the Marine Corps. Petitioner’s 8 June 2004, self-referral to the SACO because of his desire to seek help with his alcohol problem indicated an attempt for rehabilitation and acceptance of responsibility for his drinking. In that same vein, the Board believed that Petitioner’s assault charges were directly linked to his drinking and were a result of youthful indiscretion that was manifested by his inability to consume alcohol in a responsible manner. Lastly, the Board viewed Petitioner’s steady employment and post-service awards in a favorable light in regards to his post-service conduct. In view of the foregoing, the Board finds the existence of an injustice warranting the following partial corrective action. BOARD RECOMMENDATION Petitioner shall be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) indicating that he received a “General (under honorable conditions)” characterization of service. No further changes shall be made to Petitioner’s record. A copy of this report of proceedings is to be filed in Petitioner’s naval record. 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 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.