Docket No: 172-19 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 of 3 Sep 14 “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” (c) PDUSD Memo of 24 Feb 16 “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) PDUSD Memo of 25 Aug 17 “Clarifying Guidance to MilitaryDischarge 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” Encl:(1) DD Form 149 (2) Advisory Opinion of 9 Sep 19 1. Pursuant to the provisions of reference (a), Petitioner filed enclosure (1) with this Board requesting that his other than honorable (OTH) characterization of service from the Navy be upgraded to general or honorable. Enclosures (1) and (2) apply. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 28 April 2020, and pursuant to its regulations, determined that 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 the naval records, and applicable statutes, regulations, and policies, post-service diagnosis, and enclosure (2), an advisory opinion (AO) provided by a Navy mental health professional. 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. Petitioner enlisted in the Marine Corps and began a period of active duty on 25 November 1968. During the period from 30 May 1969 to 13 March 1970, Petitioner participated in Operations against the Viet Cong in the Republic of Vietnam. He also earned the Combat Action Ribbon, Vietnam Service Medal with one star, and Vietnam Cross of Gallantry Medal with Palm Leaf device. On 1 March 1971, he were convicted by special court-martial (SPCM) of 258 days of unauthorized absence (UA). He was sentenced to a period of confinement at hard labor, a reduction in paygrade, and a bad conduct discharge. On 22 April 1971, he waived his right to request restoration to full duty. On 12 July 1971, Petitioner was discharged from the Marine Corps with an other than honorable (OTH) characterization of service. On 7 October 1977, the Secretary of the Navy approved the substitution of Clemency discharge for his completion of alternate service pursuant to Presidential Proclamation No. 4313. On 25 October 1977, his OTH discharge was changed to a “Clemency” discharge. Discharges awarded under this program do not bestow entitlement to benefits administered by the Department of Veterans’ Affairs (VA). c. Petitioner states, in part, that his discharge was based on one isolated incident. When he returned home from his tour in Vietnam, which lasted 13 months, he had combat stress, along with family issues that left him nonoperational as a Marine. He added that when he arrived home, he encountered family problems relating to poverty, drug abuse, and a newborn child. During this time, he was battling his own personal issue with PTSD from what he had experienced in d. As part of the Board’s review, a Navy mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 9 September 2019. The AO stated that Petitioner’s UA does follow his Vietnam service and could be conceptualized as avoidance symptoms consistent with PTSD. e. Petitioner’s request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017. CONCLUSION Upon review and consideration of all the evidence of record, and especially in light of enclosure (2), theBoard concludes that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (d). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. In this regard, based upon his overall record of service, and although there is insufficient evidence to attribute Petitioner’s misconduct to a mental health condition, he should be granted relief by changing his characterization of service to general. While the Board does not condone Petitioner’s misconduct and is not willing to upgrade his request to an honorable characterization service, it did determine that his misconduct was related to the effects of his participation in Operations against the Viet Cong in the Republic of The Board finds the misconduct is sufficiently mitigated by the effects of the experience in to warrant affirming the general discharge, making Petitioner eligible for veterans’ benefits. In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. RECOMMENDATION Petitioner’s naval record is corrected to show that on 12 July 1971, he received a General (Under Honorable Conditions) characterization of service. Petitioner be issued a new DD Form 214 Certificate of Release or Discharge from Active Duty. No further action be granted. A copy of this report of proceedings be filed in Petitioner’s naval record. Upon request, the Department of Veterans Affairs is informed that Petitioner’s application was received by the Board on 21 November 2018. 4. It is certified that 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.