Docket No: 11226-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , USMC, XXX-XX- 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 (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 (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 (e) USD 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) DD Form 214 (3) NAVMC 118 (9), Combat History and Expeditions (4) NAVMC 118 (11), Administrative Remarks, 22 Aug 91 (5) NAVMC 118 (12), Offenses and Punishments, 29 Dec 92 (6) NAVMC 118 (11), Administrative Remarks, 17 Mar 93 (7) Standard Form 513, Medical Record: Consultation Sheet, 11 Jan 93 (8) NAVMC 118 (11), Administrative Remarks, 21 Jan 93 (9) NAVMC 118 (12), Offenses and Punishments, 27 Jan 93 (10) NAVMC 118 (11), Administrative Remarks, 2 Feb 93 (11) NAVMC 118 (11), Administrative Remarks, 24 Feb 93 (12) NAVMC 118 (11), Administrative Remarks, 17 Mar 93 (13) NAVMC 118 (13), Record of Conviction by Court-Martial, 6 Apr 93 (14) 1st , 1st Marine Division (Rein) Memo, subj: Notification of Separation Proceedings, 15 Jul 93 (15) Petitioner Memo, subj: Acknowledgment of my Rights to be Exercised or Waived during Separation Proceedings, 22 Jul 93 (16) 1st , 1st Marine Division (Rein) Memo, subj: Recommendation for Administrative Discharge; Case of [Petitioner], 23 Jul 93 (17) 1st Memo, subj: Recommendation for Administrative Discharge Case of [Petitioner], 10 Aug 93 (18) Psychiatry Associates – Treatment Records (19) Advisory Opinion of 29 Jan 21 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 characterization of service be upgraded to either honorable or general (under honorable conditions). 2. The Board reviewed Petitioner's allegations of error or injustice on 24 February 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) – (e). 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error or 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 service on 5 December 1989. See enclosure (2). c. Petitioner participated in Operation Desert Shield and Operation Desert Storm from 1 September 1990 to 5 April 1991. See enclosure (3). d. Between 23 February and 1 March 1991, Petitioner was exposed to a large amount of smoke from the Burgan Oil Fields, which were known to be high in sulfur content. See enclosure (4). e. On 30 November 1992, Petitioner tested positive for the use of amphetamines/ methamphetamines in violation of Article 112a, Uniform Code of Military Justice (UCMJ). He received NJP for this offense on 29 December 1992. See enclosure (5). f. On 11 January 1993, Petitioner tested positive for the use of cocaine. See enclosure (6). He was also diagnosed on this date with both alcohol and drug dependency. See enclosure (7). g. On 21 January 1993, Petitioner tested positive for the use of amphetamines/ methamphetamines. See enclosure (6). He was also counseled on this date regarding his use of illegal drugs, and was notified that he was being processed for an administrative separation from the Marine Corps. See enclosure (8). h. On 27 January 1993, Petitioner received NJP for disobeying a lawful order by breaking restriction in violation of Article 92, UCMJ. See enclosure (9). i. On 2 February 1993, Petitioner acknowledged that a Medical Officer had diagnosed him as being both alcohol and drug dependent, and that he had been recommended for Level III treatment in conjunction with his discharge. See enclosure (10). j. On 24 February 1993, Petitioner requested treatment for his drug and alcohol dependency from the Department of Veterans Affairs (VA) treatment center nearest to his home of record. See enclosure (11). k. On 17 March 1993, Petitioner was counseled for his three previously mentioned positive urinalysis results, and was advised that failure to take corrective action may result in administrative separation or judicial proceedings. See enclosure (12). l. On 6 April 1993, Petitioner was convicted by summary court-martial (SCM) of three specifications of wrongful use of controlled substances (cocaine, amphetamines/ methamphetamines, and marijuana) in violation of Article 112a, UCMJ. See enclosure (13). m. By memorandum dated 15 July 1993, Petitioner was notified that his commander intended to recommend that he be discharged from the Marine Corps by reason of misconduct due to drug abuse. See enclosure (14). n. By memorandum dated 22 July 1993, Petitioner waived his right to an administrative discharge board. See enclosure (15). o. By memorandum dated 23 July 1993, Petitioner’s commander recommended to the separation authority that Petitioner be discharged from the Marine Corps under other than honorable (OTH) conditions due to drug abuse. This memorandum described Petitioner’s performance of duties as marginal, and stated that he displays no remorse for his illegal drug use. See enclosure (16). p. By memorandum dated 10 August 1993, the separation authority directed that Petitioner be discharged from the Marine Corps under OTH conditions by reason of misconduct due to drug abuse. See enclosure (17). q. On 20 August 1993, Petitioner was discharge from the Marine Corps under OTH conditions for misconduct due to drug abuse. See enclosure (2). r. Petitioner asserts that he had difficulty coping with some of his experiences upon his return from Operation Desert Shield/Desert Storm, and that he began using alcohol and drugs to deal with the effects and suppress the mental pain he was experiencing. The experiences that he describes included daily encounters with the dead bodies of Iraqi soldiers and civilians, to include children, as well as the anxiety of SCUD missiles being routinely fired at or over his unit’s position. He states that it was this drug and alcohol use which resulted in his downfall, and that his discharge from the Marine Corps caused him to go deeper into depression and increase his drug and alcohol use even more. See enclosure (1). s. In 2019, Petitioner was diagnosed with and began treatment for post-traumatic stress disorder (PTSD) arising from his experience in Desert Shield/Desert Storm. See enclosure (18). t. Due to Petitioner’s claim of PTSD, his application and records were reviewed by a qualified mental health professional who prepared an advisory opinion (AO) for the Board’s consideration. The AO found that Petitioner presented a credible narrative detailing increasing psychological symptoms and behavioral changes due to undiagnosed PTSD from combat operations in Desert Shield/Desert Storm. The psychological symptoms and behaviors that were reflected in his records and through his narrative were consistent with PTSD, to include increasing alcohol and drug abuse as a maladaptive coping mechanism. The AO also found that Petitioner’s contention that his misconduct arose from undiagnosed PTSD was further corroborated by post-service clinical records of inpatient treatment for PTSD and major depression, as well as outpatient clinical records for treatment of PTSD, major depression, and chronic insomnia, all attributed to his military combat experiences. The AO concluded that Petitioner suffered from undiagnosed combat-related PTSD incurred as a result of his military service, which should be considered as mitigation for his misconduct. See enclosure (19). MAJORITY CONCLUSION: Upon careful review and consideration of all the evidence of record, the Majority of the Board determined that Petitioner’s application warrants relief in the interests of justice. Due to the evidence of PTSD, Petitioner’s application was considered in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s claim of PTSD, and the effect that it may have had upon his misconduct. In this regard, the Majority substantially agreed with the AO that Petitioner provided sufficient evidence to establish that he developed PTSD as a result of his combat service in Operation Desert Shield/Desert Storm, and that this condition mitigated his misconduct since it arose, at least in part, from his efforts to self-medicate for the symptoms of his untreated and undiagnosed PTSD. In addition to applying liberal consideration to Petitioner’s mental health condition in accordance with references (b) – (d), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Board considered, among other factors, that the misconduct for which Petitioner was discharged was mitigated by his untreated and undiagnosed PTSD condition arising from his combat experiences; Petitioner’s meritorious combat service, to include the award of the Combat Action Ribbon; that Petitioner’s combat-related PTSD condition went undiagnosed and untreated, causing him to endure its symptoms for many years and to suffer its consequences long after his deployment; that Petitioner’s Marine Corps career was otherwise meritorious, as reflected by his proficiency and conduct trait marks well above 4.0 before the downward spiral that began upon his return from deployment; Petitioner’s relative youth and immaturity at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon the totality of the circumstances, the Majority determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions) in the interests of justice. The Majority considered whether an upgrade of Petitioner’s characterization of service to fully honorable was warranted, but given the nature and quantity of Petitioner’s in-service misconduct it determined that such relief was not warranted under the totality of the circumstances. In addition to determining that Petitioner’s characterization of service should be upgraded, the Majority also determined that the narrative reason for Petitioner’s separation should be changed to “Secretarial Authority” in the interests of justice to minimize potential future negative implications. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions)”; that the narrative reason for his separation was Secretarial Authority”; that his separation authority was “MARCORSEPMAN par 6214”; and that his separation code was “JFF1”; That no further corrections be made to Petitioner’s naval record; That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: After careful review and consideration of all of evidence of record, the Minority of the Board determined that no relief was warranted in Petitioner’s case given the totality of the circumstances. The Minority also applied liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his misconduct in accordance with references (b) – (d), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Minority did not question whether Petitioner developed PTSD as a result of his combat service, or even that the condition may have mitigated the misconduct for which Petitioner was discharged. However, the Minority found the nature and quantity of Petitioner’s misconduct to be so significant that it outweighed all potentially mitigating factors. Specifically, the Minority believed Petitioner’s misconduct to be so significant that it could have warranted a special court-martial (SPCM), along with the consequences that would come from a federal felony conviction and bad-conduct discharge. As such, the Minority believed that Petitioner was already the beneficiary of generous relief at the hands of his command which elected not to pursue a SPCM, and that further relief is therefore not warranted in the interests of justice. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no correction action be taken on Petitioner’s naval record. 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 3/10/2021 ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MAJORITY Recommendation Approved (Upgrade to General (under honorable conditions)) 3/25/2021