From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER 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 TBI,” of 24 February 2016 (d) USD 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 (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) Mental Health Condition Advisory Opinion, MLCS/Docket No: of 30 Jan 20 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by upgrading his characterization of service. 2. The Board reviewed Petitioner’s application on 6 February 2020 and, pursuant to its regulations, determined that the corrective action indicated below be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval service records and his medical records, applicable statutes, regulations, and policies, and an advisory opinion (AO) from a qualified Navy 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 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 September 1967. On 16 April 1968, Petitioner was wounded in a firefight against hostile forces in . Petitioner was awarded the Purple Heart Medal for the wounds he sustained as the direct result of enemy action. d. On 15 July 1968, a medical board recommended that Petitioner be assigned to limited duty in the United States and then be reevaluated. Between 20 April and 10 June 1969, Petitioner was in an unauthorized absence (UA) status. Between 13 September 1969 and 10 August 1970, the Petitioner again was in a UA status. On 2 September 1970, Petitioner submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for his two UA periods, which totaled 381 days. On 2 October 1970, Petitioner’s request was disapproved and his charges were referred to a special court-martial (SPCM). On 7 October 1970, Petitioner was convicted by SPCM for both periods of UA and sentenced to confinement for 120 days, forfeitures of pay, reduction in rank to the lowest enlisted paygrade, and a bad-conduct discharge (BCD). Upon the completion of post-trial appellate review, Petitioner was discharged from the Marine Corps with a BCD on 15 January 1971. e. On 30 January 1976, Petitioner received a pardon and a clemency discharge pursuant to Presidential Proclamation 4313. In May 1977, the Naval Discharge Review Board upgraded Petitioner’s characterization of service to General (Under Honorable Conditions) (“GEN”). f. Petitioner contends that he was suffering from post-traumatic stress disorder (PTSD) as a result of traumatic events he experienced during his combat tour in , and he argues that the Board must view his PTSD as a mitigating factor in his misconduct and upgrade his discharge. Petitioner also contends that he suffered emotionally, spiritually, and physically, and that, but for his combat experiences in , he would not have been absent without authority. g. As part of the Board’s review, a Navy medical officer (NMO), who is also a licensed clinical psychologist, reviewed Petitioner’s contentions and the available records. The NMO issued an AO on 30 January 2020, observing that Petitioner submitted evidence that he has a PTSD diagnosis his civilian treatment providers have attributed to his combat injuries during Vietnam. The NMO determined that it was possible that Petitioner’s symptoms were delayed in onset, that avoidance of reminders of traumatic experiences is a symptom of PTSD, and that his UA could be conceptualized as PTSD avoidance. The NMO concluded by opining that there is evidence that Petitioner incurred PTSD during his military service, and that his misconduct could be attributed to avoidance of PTSD symptoms. CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of the AO and the civilian provider’s service-connected PTSD determination, the Board concludes that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for Veterans seeking redress and assist Boards for Correction of Military/Naval Records “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 because 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. Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform Veterans about how to achieve relief with these types of cases. Similarly, the intent of the Under Secretary of Defense Memorandum (reference (e)), is to simplify the process for Veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to . . . the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed mental health issues mitigate the misconduct used to characterize his discharge. The Board also concluded that Petitioner’s PTSD-related conditions as a causative factor in the misconduct contributing to his discharge and characterization were not outweighed by the severity of his misconduct. With that, the Board concluded that no useful purpose is served by continuing to characterize Petitioner’s service as GEN, and that a discharge upgrade is now appropriate. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s characterization of service be changed to “Honorable,” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the type of certificate issued (block 9f) be changed to “DD 256 MC.” Following the corrections to DD Form 214 MC (as amended), that all other information currently listed on such DD Form 214 MC remain the same, including the lack of an assigned reentry/reenlistment code. Petitioner shall be issued a new DD Form 214 MC, Armed Forces of the United States Report of Transfer or Discharge. That, in the event that Petitioner’s current DD Form 214 MC is obsolete and cannot be corrected and/or reissued, Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, reflecting the recommended corrections above. That Petitioner be issued a new Honorable Discharge Certificate. 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 2020. 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 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.