DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2167-19 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 Post Traumatic Stress Disorder” (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) USD Memo of 25 Aug 17 “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” (e) USECDEF Memo of 25 Jul 2018 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 with attachments (2) Mental Health Condition Advisory Opinion, Docket No: NR20190002167 of 27 Feb 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with a request to upgrade his characterization of service. Enclosures (1) and (2). 2. The Board, consisting of reviewed Petitioner's 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 his naval service records and his medical records, applicable statutes, regulations, policies, and an advisory opinion (AO) from a 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 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 review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active service on 2 July 2001. On 20 November 2003, Petitioner went to non-judicial punishment (NJP) for the wrongful use of a controlled substance. d. On 2 December 2003, Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to drug abuse. He elected to waive his right to consult with counsel, to include written rebuttal statements, and to present his case to an administrative separation board. Ultimately, on 11 March 2004, Petitioner was discharged from the Marine Corps with an Other Than Honorable (OTH) characterization of service and “Misconduct” as the narrative reason for separation on his DD Form 214. e. Petitioner’s final overall proficiency and conduct trait averages assigned on his period evaluations during his enlistment were 4.2 and 4.2, respectively. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 3.0 in proficiency (proficient and industrious performance of duty), and 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. f. Petitioner contended that he developed post-traumatic stress disorder (PTSD) during his 2003 deployment resulting in his self-medicating with marijuana and alcohol. Petitioner further argued that the PTSD was a causative factor for the behavior underlying his separation and OTH discharge. g. As part of the review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed Petitioner’s contentions and the available records and issued an AO dated 27 February 2020. The MD initially noted that Petitioner was diagnosed with PTSD post-service. The MD observed that the VA diagnosed Petitioner with service-connected PTSD, unspecified depressive disorder, and alcohol use disorder, and that the VA granted a 100% disability rating for his mental health conditions. The MD noted that Petitioner provided sufficient evidence of combat-related traumatic events arising from his Iraq deployment, and further noted that Petitioner’s use of alcohol and marijuana as a self-medication strategy was common in undiagnosed PTSD. The MD concluded by opining that it was more likely than not that Petitioner incurred his PTSD as a result of his military service and that Petitioner’s in-service misconduct can be attributed to his PTSD. CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of the AO and the documented 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. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed PTSD and any related mental health issues should mitigate the misconduct used to characterize his discharge. The Board also concluded that Petitioner’s PTSD-related conditions as a possible causative factor in the misconduct contributing to his discharge characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize Petitioner’s service with an OTH, and that a discharge upgrade is appropriate at this time. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “Honorable,” the narrative reason for separation bechanged to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the reentry/reenlistment code be changed to “RE-1J.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. 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 13 February 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 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.