DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 11759-19 Ref: Signature Date 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 MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” 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,” 24 February 2016 (d) USD Memo, “Clarifying Guidance to MilitaryDischarge 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,” 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,” 25 July 2018 (f) SECNAVINST 1850.4 (B-F), Department of the Navy Disability Evaluation System Encl: (1) DD Form 149 with attachments (2) DD Form 214 (ending 2 Jan 89) (3) DD Form 214 (ending 28 May 91) (4) Petitioner Memo, subj: Body Handler, 2 Feb 91 (5) Record of NJP, 8 Feb 91 (6) Statement of CPL A.P., undated (7) Fourth Marine Corps District CO Memo, subj: Nonjudicial Punishment: Reduction, 8 Feb 91 (8) Petitioner Memo, subj: Request Immediate Re-Assignment, 15 Feb 91 (9) Petitioner Letter, dtd 22 Feb 91 (10) Marine Detachment, Port Mortuary OIC Memo, subj: Demobilization, Phase I, 2 Mar 91 (11) SF 600, Chronological Record of Medical Care, 4 Mar 91 (12) NAVMC 118 (3), Chronological Record, 6 Mar 91 (13) NAVMC 118 (12), Offenses and Punishments, 7 Mar 91 (14) Petitioner Letter, subj: Wrongful N.J.P. proceedings held again, 7 Mar 91 (15) Petitioner Letter (handwritten to COL E.), 7 Mar 91 (16) Petitioner Letter, dtd 13 Mar 91 (17) NAVMC 10132, Unit Punishment Book, 15 Mar 91 (18) Fourth Marine Corps District CO Memo, subj: Request for Misconduct Discharge due to Minor Disciplinary Infractions; Case of [Petitioner], 15 Mar 91 (19) NLSO Memo, subj: Psych Eval for [Petitioner], 4 Apr 91 (20) SF 613, Medical Record – Consultation Sheet, 11 Apr 91 (21) Petitioner Memo, subj: Request for Misconduct Discharge due to Minor Disciplinary Infractions; Case of [Petitioner], 6 May 91 (22) Dr. K.N.S, M.D Letter, dtd 1 July 19 (23) Purpose Psychiatry SOAP Note, 1 Jun 19 (24) Pathways to Wellness Letter, dtd 3 Jun 19 (25) Department of Veterans Affairs Rating Decision, VA File Number 571-55-9881, 23 Mar 20 (26) BCNR Memo Docket No: NR20190011759, subj: Advisory Opinion ICO [Petitioner], 16 Feb 21 (27) CORB Memo, subj: Request for Comments and Recommendations ICO [Petitioner], 1 Apr 21 (28) CORB Memo (1st Endorsement of Enclosure (24), subj: Request for Comments and Recommendations ICO [Petitioner], 5 Apr 21 (29) Supplemental Brief in Response to Advisory Opinions and in further Support of Application 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 honorable; that he be granted a medical retirement or, alternatively, that his narrative reason for separation be changed to “Secretarial Authority”; that his rank be restored; and that his separation and reenlistment codes be adjusted accordingly. Although not requested in his original submission, Petitioner subsequently requested “the awards and commendations he rightfully is due for his faithful service and sacrifice, including Good Conduct 2nd Award earned 910103,” and equivalent ribbons, medals, commendations, and other awards received by service members assigned to the rebuttal to an advisory opinion (AO) issued by the Secretary of the Navy’s Council of Review Boards (CORB). 2. The Board reviewed Petitioner's allegations of error or injustice on 17 May 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 records, and applicable statutes, regulations, and policies, to include references (b) – (e). 3. The Board, having reviewed all of 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 1 This request was made within Petitioner’s rebuttal to the advisory opinion issues by the Secretary of the Navy’s Council of Review Boards (Enclosure (29)). 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 interests of justice to waive the statute of limitations and review Petitioner’s application on its merits. c. Petitioner enlisted in the Marine Corps as an Aircraft Communications/Navigation Systems Technician (MOS 6317) and began a period of active duty service on 3 January 1985. He served honorably until he was discharged in the grade of E-3 upon the completion of his service obligation on 2 January 1989. During this enlistment, he earned a Good Conduct Medal, as well as a Meritorious Mast for outstanding performance of duty while serving as a Telecommunications Clerk.2 See enclosure (2). d. After the outbreak of the , Petitioner reenlisted in the Marine Corps Reserve and volunteered to return to active duty. He began another period of active duty service on 23 January 1991 in a Special Assignment (MOS 9915), and was unexpectedly assigned to serve as a body handler in the . See enclosure (3). It appears from the record that Petitioner’s unit was a joint entity operating under the command of an Air Force officer. e. By memorandum dated 2 February 1991, Petitioner requested a reassignment from his chain of command. He stated that he was not trained to be a body handler, and that he was having difficulty dealing with the dead bodies. See enclosure (4). There is no evidence in the record of any response to this request. f. On 8 February 1991, Petitioner was charged with being seen with a married woman in violation of Article 90, Uniform Code of Military Justice (UCMJ).3 See enclosure (5). He subsequently received nonjudicial punishment (NJP) for this charge, which included reduction to the rank of Private First Class. See enclosure (7). g. In response to the charge of violating Article 90, UCMJ, Petitioner again reiterated to his command that he need to be reassigned because he could not tolerate his mortuary assignment. See enclosure (5). h. By memorandum dated 15 February 1991 and addressed to his Reserve Support Center, Petitioner requested immediate reassignment. In support of this request, he commented that he had received his first NJP in over six years of service just 11 days into the assignment for a questionable offense and that the unit seems to be comprised of reserve officers and noncommissioned officers who “have never seen active duty a day in there [sic] lives.” See enclosure (8). 2 Petitioner was specifically recognized for performance of duties outside of his MOS. 3 The record is unclear regarding how being seen with a married woman, without any other context, would constitute a violation of Article 90, UCMJ. There is evidence in the record suggesting that this incident consisted of Petitioner’s friend, presumably a married woman, knocking on his barracks room door and asking him to come outside with her and her brother. See enclosure (6). i. By letter dated 22 February 1991, Petitioner again requested reassignment away from the mortuary unit to which he was assigned from his Reserve Support Center. See enclosure (9). j. Effective 3 March 1991, Petitioner’s unit began demobilization procedures. See enclosure (10). k. On 4 March 1991, Petitioner sought medical treatment for a “nervous problem. He complained of nervousness and insomnia over the previous two weeks. See enclosure (11). l. On 6 March 1991, Petitioner’s Marine Detachment was ordered to return home. See enclosure (12). Despite these orders, Petitioner was retained at his mobilized unit, apparently due to pending NJP. m. On 7 March 1991, Petitioner received his second NJP for failing to be at his appointed placed of duty (restriction muster), in violation of Article 86, UCMJ; disobeying the lawful order not to have any women on the second deck of the barracks in violation of Article 92, UCMJ; and making a false official statement regarding the location of his identification card, in violation of Article 107, UCMJ. His punishment included reduction to Private (E-1). See enclosure (13). n. By memorandum dated 7 March 1991, Petitioner notified his Reserve Support Center that his command was preventing him from returning home as ordered based upon the NJP discussed above. He reported that the senior Marine officer at the detachment refused to press charges against him, so the Air Force commander went over his head to another officer three hours away . In this memorandum, Petitioner accused the command of making up “bogus” charges against him and a few other Marines in the hope that they would fight them, thus extending the command’s ability to remain on active duty and continue drawing double pay. See enclosure (14). o. By letter dated 7 March 1991, Petitioner informed his detachment commander that he was ordered to demobilize with his unit, but had been retained in the unit. In this letter, he accused the command and staff at the mortuary unit of singling out him and two other Marines as examples of what happens to people who request reassignment out of the mortuary unit. See enclosure (15). p. On 15 March 1991, Petitioner received his third NJP for two specifications of failing to go at the time prescribed to his appointed place of duty and one specification of absenting himself from his appointed place of duty, all in violation of Article 86, UCMJ.4 See enclosure (17). 4 By memorandum dated 13 March 1991, Petitioner explained that his first failure to report occurred when unknowingly had reported in 11 minutes late after being awoken by the duty noncommissioned officer at 0651 and logging into the Duty Room after using the facilities and then proceeding to clean the toilets pursuant to the orders of his supervisor from the previously evening. He further explained that the second failure to report occurred when he was ordered to report back to his barracks to pack his bags to travel to Philadelphia to attend another NJP proceedings, and that he unknowingly failed to log into the duty room when was eight feet from his barracks room. See enclosure (16). q. By memorandum dated 15 March 1991, Petitioner was notified that he was being recommended for separation by reason of misconduct due to minor disciplinary infractions. See enclosure (18). r. Subsequent to his receipt of enclosure (18), Petitioner sought the advice of counsel. By letter dated 4 April 1991, Petitioner’s counsel requested that Petitioner receive a psychological evaluation, stating that he had “come to seriouslyquestion [Petitioner’s] emotional stability” during his interviews with Petitioner. See enclosure (19). s. On 11 April 1991, Petitioner received a psychological evaluation pursuant to the request made by his counsel. The medical notes for this evaluation state that Petitioner voluntarily returned to active duty to support Operation Desert Storm, but was instead sent to Dover where he was charged with working with casualties of war. They further state that prior to his assignment at Dover, Petitioner had not seen a dead body, had never been to a funeral and immediately began having problems. Petitioner was diagnosed with Occupational Problems, and the provider noted that Petitioner was “experiencing some PTSD-like symptoms related to his experiences in the morgue, but he is not experiencing full-blown PTSD.” Petitioner was found fit and suitable for duty. See enclosure (20). t. By memorandum dated 6 May 1991, Petitioner acknowledged notice of the administrative separation proceedings against him, and waived his right to appear before an administrative separation board. See enclosure (21). u. On 28 May 1991, Petitioner was discharged under other than honorable (OTH) conditions from the Marine Corps Reserve for misconduct due to a pattern of misconduct. See enclosure (3). v. In Jun 2019, three separate mental health providers diagnosed Petitioner with post-traumatic working as a body handler at the mortuary at See enclosures (22) – (24). w. On 23 March 2020, the Department of Veterans Affairs (VA) awarded Petitioner a 70 percent disability rating for service-connected PTSD with major depressive disorder, effective 7 June 2019. See enclosure (25). x. Petitioner contends that his misconduct was the direct result of his PTSD and that each of the questions posed by reference (d) are affirmative. Accordingly, an upgrade to his characterization of service is warranted. He further contends that he should be granted a medical retirement due to a clear and unmistakable error at the time of his discharge. Specifically, he contends that his manifested PTSD conditions caused him to be medically unfit for active duty service, and therefore he should have been referred to the disability evaluation system which would have found him unfit with at least a 30 percent disability rating. To support his contention that his PTSD rendered him unfit for service, Petitioner notes that he was unable to continue functioning in society following his discharge and has barely been able to earn more than $5,000 per year as result. See enclosure (1). y. Because Petitioner based his claim for relief in whole or in part upon a mental health condition, his application and records were reviewed by a qualified mental health professional who provided an advisory opinion (AO) for the Board’s consideration. The AO noted that Petitioner’s personal statements, in-service psychiatric evaluation, and in-service medical records document psychological symptoms and behavioral changes consistent with PTSD, and that his PTSD diagnosis was well established in three independent mental health evaluation in 2019. It also noted that Petitioner’s misconduct after his assignment to the mortuary unit stood in stark contrast to the conduct that he exhibited throughout his previous enlistment. Based upon the available evidence, the AO found that there is sufficient objective evidence that Petitioner exhibited psychological symptoms and behaviors consistent with PTSD during his 1991 military service, and that his misconduct may be mitigated by this PTSD condition. See enclosure (26). z. Petitioner’s application and records were also referred to the Secretary of the Navy’s Council of Review Boards (CORB) foran AO pertaining to Petitioner’s request for a medical retirement. After consideration by a team of medical and psychiatric professionals, the CORB opined that the evidence does not support Petitioner’s request for a medical retirement. In making this determination, the CORB noted that reference (d) pertains to changes in discharge characterizations, and not to adjudication of cases within the disability evaluation system. The CORB found enclosure (20), which was a psychological evaluation conducted by either a psychologist or a licensed clinical social worker and requested specifically for the purpose of evaluating Petitioner’s fitness for military service, to be highly relevant to the question of Petitioner’s fitness for duty at the time in question. The CORB AO found erroneous Petitioner’s contention that the conclusions reached in enclosure (20) were erroneous and constituted a clear and unmistakable error, and in contravention of the applicable diagnostic criteria for PTSD, as Petitioner mischaracterized enclosure (20) in his application. Further, the CORB AO noted that even if Petitioner had met the clinical criteria for and been diagnosed with PTSD, under reference (f) “the mere presence of physical disability does not, in itself, require a finding of unfitness. In each case considered, it is necessary to correlate the nature and degree of functional impairment produced by physical disability with the requirements of the duties to which the member may reasonably expect to be assigned by virtue of his office, grade, rank, or rating.”5 Subsequent editions of reference (f) noted an “understanding that the mere presence of a diagnosis is not synonymous with a disability.” Hence, it is not the diagnosis of a condition but the manifested functional impairment of the condition that dictates fitness. Based on this, the CORB AO found that the contents of enclosure (20) accurately assessed Petitioner’s fitness for duty. See enclosure (27). aa. By memorandum dated 5 April 2021, the Director, CORB, endorsed the recommendation with regard to Petitioner’s request for a medical retirement made by the CORB Medical/ Psychiatric Advisor in enclosure (27). See enclosure (28). bb. Enclosures (27) and (28) were referred to Petitioner for comment prior to the Board’s deliberation. Petitioner responded in a supplemental brief prepared by his counsel disagreeing with the findings of enclosures (27) and (28). The supplemental brief objected to the CORB’s reliance upon enclosure (20) for the following reasons: (1) Enclosure (20) was not completed by a qualified physician; (2) there is no evidence that the examiner had complete information and 5 Version (b) of reference (f) was in effect at the time in question, and is quoted here. the cursory evaluation was never intended to substitute for a full mental health examination; (3) the evaluation was not thorough and proper; (4) the brief evaluation identified a number of PTSD symptoms and raises red flags regarding PTSD; (5) Petitioner would have tested positive for PTSD if the diagnostic manual had been properly applied to the facts; and (6) the CORB’s exclusive reliance on enclosure (20) disregards overwhelming evidence of Petitioner’s severe PTSD at the time of his discharge that prevented his transition to civilian life and destroyed every aspect of his life immediately after discharge. Accordingly, Petitioner’s counsel contends that the Board should disregard enclosures (24) and (25). See enclosure (29). CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Board determined that relief is warranted in the interests of justice. Because Petitioner’s claim for relief was based in whole or in part upon his PTSD condition, the Board reviewed Petitioner’s application in accordance with the guidance of references (b) – (d). Accordingly, the Board applied liberal consideration to Petitioner’s PTSD condition, and the effect that it may have had upon his misconduct. The Board also gave special consideration to the VA’s determination that Petitioner’s PTSD condition was service connected. In this regard, the Board substantially concurred with the findings of enclosure (26) that Petitioner exhibited psychological symptoms and behaviors consistent with PTSD during his military service, and that this condition may mitigate the misconduct for which he was separated. Specifically, the Board noted that enclosure (20) found that Petitioner was exhibiting PTSD-like symptoms based on his experiences in the morgue, along with the stark change in his performance relative to his previous enlistment, suggesting that his performance was adversely influenced by these symptoms. In addition to applying liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his conduct in accordance with references (b) – (d), the Board 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, the mitigating effect of Petitioner’s undiagnosed and untreated PTSD condition upon the misconduct for which he was separated; the extremely minor, if not petty and questionable, nature of the misconduct for which Petitioner was separated; that Petitioner repeatedly notified his command of the adverse effect that his duties were having upon him, but no efforts were made to assist him; Petitioner’s previous honorable service in the Marine Corps, and that he volunteered for combat service in the only to unexpectedly find himself assigned to mortuary affairs duties for which he was untrained and unprepared; that Petitioner developed PTSD as a result of this service which went undiagnosed and untreated for many years, causing him to continue to endure its symptoms long after his discharge from the Marine Corps; that Petitioner’s PTSD symptoms had significant adverse consequences upon his personal and professional life; and the passage of time since Petitioner’s discharge. Based upon this review, the Board determined that the mitigating circumstances far outweighed the extremely minor misconduct for which Petitioner was discharged. Accordingly, the Board determined that Petitioner’s characterization of service should beupgraded to honorable in the interests of justice. Although the Board found that the misconduct for which Petitioner was separated was extremely minor and probably did not warrant his separation, much less his separation under OTH conditions, it found no error or injustice in the NJPs administered or in the rank reductions that resulted. Accordingly, the Board was not inclined to remove these NJPs or to restore Petitioner’s rank. Likewise, the Board was not inclined to direct that Petitioner receive a Good Conduct Medal for the period in question because Petitioner did not meet the minimum time in service requirement for this award and his misconduct, even if mitigated, negated his eligibility for such recognition. The Board does, however, direct that Headquarters, Marine Corps, audit Petitioner’s record to verify his entitlement to awards. Finally, the Board disagreed with the AO provided by the CORB and its endorsement by the CORB Director with regard to Petitioner’s request for a medical retirement, and finds that there is sufficient evidence that Petitioner should have been referred to the disability evaluation system at the time and awarded at least a 30 percent disability rating from the physical evaluation board.6 The Board considered all of the evidence, to include Petitioner’s honorable enlistment from 1985 to 1989; Petitioner’s identification of occupational struggles at the mortuary and his request for command assistance within days of reporting to Petitioner’s repeated attempts to seek assistance from his chain of command as evidenced by his written communications in February and March 1991; Petitioner’s in-service medical records documenting anxiety, nervousness, and PTSD-like symptoms; Petitioner being held beyond the original 60-day period of duty in the morgue despite his chain of command having knowledge of his challenges; Petitioner’s counsel requesting a psychological evaluation due to his stated concern about Petitioner’s emotional stability; Petitioner’s post-discharge struggles as articulated in his personal statements; and Petitioner’s post-discharge mental health diagnoses along with his 70% service-connected VA disability rating due to PTSD. The Board found that even in consideration of the findings of enclosure (20) regarding Petitioner’s fitness for duty, the Department of the Navy failed to properly diagnose Petitioner's PTSD prior to his discharge. Furthermore, in consideration of Petitioner’s self-identification of his struggles at the morgue as early as February 1991, the peer statements he submitted with his application for correction, his significant decline in conduct in February and March 1991, and the evidence of Petitioner’s immediate inability to readjust to civilian life, the Board found that Petitioner was not reasonably able to perform the duties commensurate with this office, grade, rank, or rating, and therefore was not fit for duty. In determining the rating percentage to which Petitioner is entitled, the Board applied the Veteran Affairs Schedule for RatingDisabilities (VASRD) to evaluated Petitioner’s specific circumstances at the time of his Marine Corps service for the period of 23 January 1991 through 6 During its 17 May 2021 session, the Board recommended that the CORB be directed to evaluate Petitioner’s available in-service and post-discharge medical records and assign Petitioner an appropriate disability rating of 30% or higher, to merit a medical retirement. During the post- Board review process, it was determined that this directive was inappropriate given the Board intent and the CORB’s previouslyprovided opinion. Accordingly, the Board was reconvened to make findings regarding the specific ratingpercentage for Petitioner’s disqualifying medical condition. All three members subsequentlydetermined that Petitioner’s disqualifying condition would warrant a 100 percent disability rating under the circumstances according to VASRD (Code 9411) for PTSD. 28 May 1991. The Board noted that within a matter of months following his discharge in May 1991, PTSD completelydevastated Petitioner’s civilian life. The Board considered that Petitioner’s personal situation was severely impacted, resulting in separation from his spouse, divorce, loss of custody of his child, and loss of parental rights; his employability suffered with the loss of his job; he went bankrupt; and he lost his family home to foreclosure. Based on the evidence in Petitioner’s application and in consideration of the information reflected in Petitioner’s service record, the Board unanimously found that Petitioner had total occupational and social impairment due to PTSD at the time of his discharge from the Marine Corps on 28 May 1991, and is entitled to a disability rating of 100 percent, resulting in his transfer to the Permanent Disability Retired List (PDRL) following his discharge from active duty on 28 May 1991. The Board also found that Petitioner’s naval record should be corrected by placing Petitioner on the PDRL for PTSD (VASRD Code 9411), with a 100 percent disability rating effective 28 May 1991. RECOMMENDATION: In view of the above, the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner’s naval record be corrected by placing Petitioner on the PDRL for PTSD (VASRD Code 9411), with a 100 percent disability rating, effective 28 May 1991. That, upon his placement on the PDRL, Petitioner be issued a new DD Form 214 for his period of active duty service from 23 January 1991 to 28 May 1991, reflecting that his service was characterized as “Honorable”; and that his narrative reason for his separation, separation authority, and separation code reflect his placement on the PDRL. Petitioner’s reentry code should remain as “RE-4.” That Headquarters, Marine Corps, conduct an audit of Petitioner’s record to determine his entitlement to any awards, ribbons or commendations, consistent with the corrections made to his record herein. That a copy of this report of proceedings be filed in Petitioner’s naval record. That no further changes be made to the 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. 7/21/2021 Executive Director ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: Board Recommendation Approved (Upgrade to Honorable; Grant Medical Retirement; Direct Award Audit; Deny Rank Restoration; Deny Good Conduct Medal Award) 8/17/2021 Assistant General Counsel (M&RA)