Docket No: 2642-19  
Ref: Signature Date  
From:  Chairman, Board for Correction of Naval Records  
To:    Secretary of the Navy  


Ref:  (a) 10 U.S.C. §1552 (b) 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”  

Encl:  (1) DD Form 149  

1. Pursuant to the provisions of the reference, Petitioner, a former member of the Marine Corps, filed the enclosure with this Board, requesting that his other than honorable characterization of service be upgraded to honorable. 

2. The Board, consisting of Messrs., reviewed the subject former member’s allegations of error and injustice on 18 June 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 enclosure, relevant portions of the subject former member’s naval records, and applicable statutes, regulations, and policies. The Board also requested, and considered, a 2 April 2020 advisory opinion (AO) of a psychiatrist. 

3.  The Board, having reviewed all the facts of record pertaining to the subject former member’s allegations of error and injustice, finds as follows: 

a.  Before applying to this Board, the Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. 

b.  The Petitioner enlisted in the Marine Corps and began a period of active duty on 22 February 1982 

c.  On 10 June 1982, the Petitioner had a conviction for driving a vehicle under the influence, and his driving privileges were revoked on base.  He was also required to attend weekly counseling and alcoholics’ anonymous meetings. 

d.  On 18 March 1984, the Petitioner was in a motorcycle accident, which caused serious damage to his left lower leg and foot.  He was subsequently evaluated and placed on limited duty. 

e.  In April 1984, the Petitioner received nonjudicial punishment for using marijuana.  In September 1984, the Petitioner was convicted at a summary court-martial of being drunk on station and communicating a threat. He was notified of the initiation of administrative separation processing and an administrative discharge board was held on 10 December 1984, which determined that the Petitioner should be discharged with an other than honorable characterization of service.  He was discharged on 9 January 1985 with an other than honorable characterization of service. 

f.  Petitioner contends he developed a mental health condition that might have mitigated the misconduct that led to his other than honorable characterization of service. It is the Petitioner’s contention that he was suffering from a mental health condition and as such should have received a better characterization of service.  Accordingly, the Board requested an AO, which made the following determination: 

in-service medical record fully documents his in-service [motorcycle accident] and subsequent series of orthopedic surgeries to treat the complex injury. The clinical records also document his ongoing complaints of chronic pain and loss of mobility. His in-service personnel records document his series of misconduct and subsequent disciplinary actions and outcomes. Notably, up until the accident and injury, his Proficiency/Conduct Evaluation Marks were good. His marijuana-related misconduct occurred after his accident though he had an in-service DUI prior to his motorcycle accident (which was found in the line of duty and not due to his misconduct). Post-discharge, he was diagnosed during a VA DBQ evaluation with service connected Depressive Disorder due to Chronic Pain, which linked his misconduct after the accident directly to his self-medication of depressive, anxiety, and chronic pain symptoms. 

The AO concluded, “it is my considered opinion that there is sufficient evidence that the Petitioner more likely than not incurred a mental health condition that can be attributed to his military service. Further, it is as likely as not that his misconduct can be significantly attributed to his mental health condition. 

CONCLUSION 
Upon review and consideration of all the evidence of record, and in light of reference (b), the Board found the existence of an error warranting relief. 

Specifically, the Board found support for the Petitioner’s contention that he suffered from a mental condition that mitigated his misconduct.  The Board found only partial mitigation to be appropriate, given Petitioner’s pre­accident DUI. Accordingly, the Board determined to upgrade his discharge to general rather than honorable. 

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