Docket No: 2568-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD 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: NR20190002568 of 31 Mar 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 and change his reentry code. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 18 June 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 naval service records, applicable statutes, regulations, and policies, as well as the enclosed 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 interest of justice to review the application on its merits. c. Petitioner enlisted in the U. S. Marine Corps Reserve on 17 April 1989. He was activated in November 1990, and served on active duty from 1 January 1991 to 17 April 1991, when he participated in and . On 12 May 1991, he was released from active duty. d. Petitioner received nonjudicial punishment (NJP) on 5 March 1993, for possession of a controlled substance during inspection. Subsequently, he was notified of pending administrative separation action by reason of misconduct due to drug abuse. Petitioner elected his right to an administrative discharge board (ADB). The ADB determined the evidence supported the alleged misconduct; recommended separation with a general, under honorable conditions (GEN) characterization of service; and further recommended the separation be suspended for 12 months. Commanding Officer (CO), Truck Company (-), concurred with the ADB’s recommendation. CO, Battalion, forwarded the package recommending separation with a GEN characterization of service. On 18 February 1994, the staff judge advocate found the discharge to be sufficient in law and fact but did not concur with the ADB’s recommendation for the separation to be suspended for 12 months. The discharge authority directed a GEN discharge by reason of misconduct due to drug abuse. On 21 March 1994, Petitioner was discharged and assigned an RE-4 (not recommended for reenlistment) reentry code. At the time of discharge, his average marks were 4.4/4.3. e. Petitioner contends he suffered from Post-Traumatic Stress Disorder (PTSD) after serving in In order to assist with the PTSD symptoms and a sleeping disorder, he self-medicated with marijuana. f. As part of the Board’s review, a Navy mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 31 March 2020. The AO stated there is sufficient evidence Petitioner suffered from PTSD and it is “as likely as not” that his diagnosed PTSD can be attributed to his military service. Further, the AO determined that Petitioner’s misconduct is “more likely than not” attributable to his mental health condition. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board reviewed the 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, relying upon the AO and applying liberal consideration, determined Petitioner’s PTSD mitigated his misconduct which led to his administrative separation. The Board further noted Petitioner’s average marks of 4.4/4.3 and the absence of misconduct or performance issues other than the single NJP that can be attributed to his mental health condition. The Board concluded it was in the interest of justice to upgrade his characterization of service. However, the Board, even applying liberal consideration, determined the RE-4 reentry code was authorized and appropriately assigned based on Petitioner’s misconduct. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “honorable.” 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 26 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 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.