DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1012-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD 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,” of 24 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 2017 Encl: (1) DD Form 149 with attachments (2) Advisory Opinion, MLCS Docket No: of 25 Sep 19 1. Pursuant to reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board correct the narrative reason for separation and separation code on his Certificate of Release or Discharge from Active Duty (DD Form 214) and upgrade his characterization of service to honorable. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 14 November 2019, and, pursuant to its regulations, determined 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 naval service records, applicable statutes, regulations, and policies, and the enclosed advisory opinion (AO) from a mental health provider. 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. 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 on 16 October 2002. He served without disciplinary incident until 26 April 2004 when he was counseled for having unexploded ordnance in his barrack’s room. He was wounded in action in April 2005 while serving in . On 30 June 2005, he received non-judicial punishment (NJP) for a 1.5 hour unauthorized absence (UA) and disobeying an order. On 30 January 2006, he received a second NJP after disobeying an order to shave. After testing positive for cocaine use in February 2006, he was evaluated for substance abuse on 6 March 2006 but was not diagnosed with a substance abuse disorder. On 14 March 2006, he was convicted by summary court-martial for his wrongful use of cocaine. Subsequently, Petitioner was notified of an administrative action to separate him from the naval service for misconduct due to drug abuse. After he waived his procedural rights, Petitioner’s commanding officer recommended he be discharged with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse. The discharge authority approved the recommendation and directed Petitioner be separated with an OTH characterization of service by reason of misconduct. On 19 June 2006, he was so discharged. On 10 November 2011, the Naval Discharge Review Board (NDRB) upgraded Petitioner’s characterization of service to general, under honorable conditions (GEN). d. Petitioner contends he suffers from Post-Traumatic Stress Disorder (PTSD) as a result of the traumatic events he experienced when wounded in action during service in . He further contends the Traumatic Brain Injury (TBI) he experienced after being shot in the head while protecting his squad leader left him with “all sorts of mental issues.” e. As part of the Board’s review, a mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 25 September 2019. The AO noted Petitioner was diagnosed with PTSD with alcohol use disorder and a TBI attributed to military service. The AO further comments that it is reasonable to attribute the misconduct after his traumatic experience to impulsive behavior consistent with a TBI or potentially indicative of PTSD avoidance symptoms. The AO concluded there was evidence to attribute his misconduct to his mental health condition incurred during military service. The favorable AO was forwarded to Petitioner for review and comment on 27 September 2019 and was considered by the Board. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants partial relief. The Board reviewed the application under the guidance provided in references (b) through (d). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The purpose of the Secretary of Defense memorandum is to ease the process for Veterans seeking redress and assist the Boards in reaching fair and consistent results in “these difficult cases.” The memorandum describes the difficulty Veterans face on “upgrading their discharges based on claims of previously unrecognized” mental health conditions. The memorandum further explains that, since mental health conditions were not previously recognized as a diagnosis at the time of service for many Veterans, and diagnoses were often not made until after service was completed, Veterans were constrained in their arguments that mental health conditions should be considered in mitigation for misconduct committed or were unable to establish a nexus between a mental health condition and the misconduct underlying their discharge. The Board, relying upon the AO and applying liberal consideration, determined it was in the interest of justice to correct Petitioner’s narrative reason for separation and the corresponding separation code. Noting the NDRB’s upgrade to a GEN characterization of service, the Board carefully weighed all potentially mitigating factors and considered each contention, but determined there was insufficient evidence to warrant upgrading the characterization of service to honorable and concluded a GEN characterization was appropriate. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the narrative reason for separation as “secretarial authority,” separation code as “JFF1,” and separation authority as “MARCORSEPMAN 6421”. 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 15 January 2019. 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. 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.