DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1584-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy 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, Docket No: NR20190001584 of 12 Dec 19 (3) Mental Health Evaluation Summary of 2 Sep 19 (4) Updated Advisory Opinion, Docket No: NR20190001584 of 19 Jan 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board upgrade his characterization of service to honorable. His case, which was most recently denied by the Board on 16 September 2011, was reconsidered in accordance with Board for Correction of Naval Records procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 20 February 2020, 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 his naval service records, applicable statutes, regulations, and policies, as well as the enclosed advisory opinions (AO) from a Navy mental health provider and rebuttal response submitted by the Petitioner. 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 18 December 1972. He received nonjudicial punishment (NJP) on 23 April 1974 for two specifications of assault, resisting apprehension, and violating an order by wrongfully possessing a knife approximately six inches long. On 1 May 1974, he received a second NJP for an unauthorized absence (UA) from his appointed place of duty. On 18 July 1974, Petitioner was convicted by special court-martial (SPCM) for disobeying an officer who directed him to report after class, disobeying a senior noncommissioned officer (SNCO) who ordered him to come outside to talk, and kicking a private. The SPCM adjudged forfeitures, reduction in rank, and confinement. On 2 November 1974, Petitioner received a third NJP for disrespecting a SNCO. d. On 23 December 1974, Petitioner submitted a written request for administrative discharge for the good of the service to avoid trial by court-martial for disrespect, disobedience, and assault. Prior to submitting this request, he conferred with a qualified military lawyer who advised him of his rights and warned him of the probable adverse consequences of accepting such a discharge. Subsequently, his request was granted and his commanding officer was directed to issue him an other than honorable (OTH) discharge by reason of the good of the service. On 27 January 1975, Petitioner was discharged with an OTH characterization of service. e. Petitioner contends he, like many veterans from his era, was not properly treated for issues of mental health or post-traumatic stress disorder (PTSD) before exiting the military. Specifically, Petitioner contends that joining the Marines at the age of 17 and “experiencing racism, harassment, and physical abuse” drove him to alcohol abuse which impaired his ability to properly serve. Although he deeply regrets his actions while on active duty and accepts his role and responsibility in being discharged, Petitioner contends he would not have received an OTH discharge under current standards and that the entire situation would have been handled differently. He contends that under current policy, he would have been afforded an opportunity to be counseled by a mental health professional and treated for PTSD and alcohol dependency. Further, Petitioner contends that a medical discharge would have been more appropriate because he was not mentally fit to continue service. f. Petitioner further contends that he still carries the same principles and discipline that were instilled in him over 40 years ago when he joined the Marines. Since being discharged, he contends his work performance has always been “nothing less than stellar” and he no longer depends on alcohol. Numerous advocacy letters were submitted on Petitioner’s behalf, each detailing his post-service accomplishments, lauding his character, and explaining the PTSD symptoms they have observed. One advocacy letter from a corporal he served with, which was submitted as part of his Naval Discharge Review Board submission in 1975, explained that Petitioner had a skin problem which led to alcohol abuse. In his personal statement, Petitioner contends he was constantly ridiculed, harassed, and beaten by peers and his superiors due to the color of his fair skin. He was called names like “mulatto, half-breed, or white-boy”. g. As part of the Board’s review, a Navy mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 12 December 2019. The AO states that Petitioner had submitted no information regarding a clinical diagnosis of PTSD or any mental health concern. The AO was provided to Petitioner on 12 December 2019, and in rebuttal, on 20 December 2019, a mental health evaluation summary (enclosure 3) was submitted which reflected a PTSD diagnosis. The evaluation stated it was “at least as likely as not” that Petitioner’s PTSD was incurred in or caused by his military service. The evaluation detailed Petitioner’s harassment during basic training because he was a very fair-skinned black man and his staff sergeant and lieutenant initially did not realize he was black. The evaluation further explained that the “harassment went beyond what others were experiencing,” so bad that he broke out in hives, was constantly anxious, and could not sleep. He was depressed, homicidal, and suicidal. Petitioner started drinking to cope with the harassment, anxiety, sleeplessness, and depression, and he developed a serious drinking problem which caused the harassment to intensify. h. In response to enclosure (3), the Navy mental health provider provided an updated AO which was considered by the Board. The AO notes Petitioner has been diagnosed with PTSD that was attributed to military service. However, the AO concludes there is insufficient evidence to attribute all of Petitioner’s misconduct to symptoms of PTSD but some misconduct, such as his UA, could be attributed to avoidance symptoms. The AO states it is more difficult to attribute possession of an illegal knife and repeated charges of assault to PTSD and further states disobedience and disrespect cannot be attributed to PTSD without additional information. See enclosure (5). CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. The Board reviewed his 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, applying liberal consideration and relying upon Petitioner’s diagnosed PTSD and the updated AO, determined there was sufficient evidence to support a finding that Petitioner’s PTSD mitigated his misconduct which led to his written request for an OTH discharge in lieu of trial by court-martial. The Board, noting the continued harassment and hazing he received by his staff sergeant and lieutenant as a result of his skin condition, concluded that even his disobedience and disrespect were mitigated by the PTSD he was experiencing in-service. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating his characterization of service as “honorable,” 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 22 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. 3/20/2020