Docket No. 3303-19
Ref:   Signature Date

From: Chairman, Board for Correction of Naval Records 
To:   Secretary of the Navy   
 
Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER                                            ,  
 
Ref:  (a) 10 U.S.C. §1552 
      (b) SECDEF Memo of 3 Sep 14 “Supplemental Guidance to Military Boards for Correction of Mlitary/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) Advisory Opinion of 15 May 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) apply.   
 
2.  The Board, consisting of            , reviewed Petitioner's application containing certain allegations of error and injustice on 10 July 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 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. Regarding the Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered the Petitioner’s case based on the evidence of record. 

d. Petitioner enlisted in the Marine Corps and began a period of active service on 23 July 1997.  On 25 September 1998, the Petitioner went to non-judicial punishment (NJP) for two specifications of unauthorized absence (UA) and for disobeying a lawful order.  The Petitioner received as punishment restriction and extra duties, as well as suspended forfeitures of pay.  On 3 December 1998, the Petitioner was involved in a serious motor vehicle accident (MVA) where he suffered closed head trauma with scalp lacerations and lower back contusions.     
 
e. On 20 January 1999, the suspended portion of Petitioner’s punishment from his September NJP was vacated due to continuing misconduct.  On 20 January 1999, the Petitioner went to NJP for the failure to obey a lawful order and for wrongful appropriation.  The Petitioner received as punishment restriction and extra duties, as well as suspended forfeitures of pay.  On 26 January 1999, the suspended portion of Petitioner’s punishment was vacated due to continuing misconduct.  On 8 February 1999, the Petitioner went to NJP for UA lasting two days.  The Petitioner received as punishment a reduction in rank to E-2 and suspended restriction.  On 9 March 1999, the Petitioner commenced a period of UA.  The Petitioner’s UA lasted 112 days and terminated on 29 June 1999.  
 
f. Following Petitioner’s return to military authority, he submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for his 112-day UA.  Prior to submitting this discharge request, the Petitioner would have conferred with a qualified military lawyer, at which time he was advised of his rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, Petitioner was spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  On 23 December 1999, the Petitioner was separated from the Marine Corps with an other than honorable (OTH) discharge.  On 5 April 2011, the Naval Discharge Review Board determined that Petitioner’s discharge was proper as issued and no change was warranted.  
 
g. In January 2018, the Veterans Administration granted Petitioner service-connection for traumatic brain injury (TBI).  In February 2019, the Social Security Administration made a fully favorable determination for the Petitioner and noted he has the following severe impairments:  TBI, depressive disorder, mild cognitive impairment, degenerative disc disease of the lumbosacral spine, and compression fracture of the T11-12.    
 
h. Petitioner contended that he was suffering from PTSD due to a TBI that affected his behavior and decision-making skills.  Petitioner argued that the Board must view his severe TBI as a mitigating factor in the misconduct underlying his discharge and upgrade his discharge.    
 
i. As part of the review process, the BCNR Mental Health Professional, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO dated 15 May 2020, observing that the Petitioner service records document his TBI and back injuries from his MVA.  The MD opined that there was sufficient evidence that Petitioner incurred a service-connected TBI and that some, but not all, of Petitioner’s misconduct may be attributable to his TBI (including residuals of depressive disorder and mild cognitive impairment).   
 
CONCLUSION: 
 
Upon review and consideration of all the evidence of record, and especially in light of the documented TBI determinations, 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 in “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.   
 
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 TBI and any related mental health issues should mitigate the misconduct used to characterize his discharge.  The Board also concluded that the Petitioner’s TBI-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 the Petitioner’s service with an OTH, and that a discharge upgrade is appropriate at this time.   
 
Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization.  The Board noted when a Marine is requesting a separation in lieu of a court-martial, that an honorable discharge is appropriate only if the Marine’s service is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record even under the liberal consideration standard for mental health conditions, and that a general (under honorable conditions) discharge characterization and no higher was appropriate. 
 
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 “General (Under Honorable Conditions),” the narrative reason for separation should be changed 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 general (under honorable conditions) discharge certificate. 
 
That if the DD Form 214 MC is obsolete and cannot be reissued, that Petitioner be issued a new DD Form 214 “Certificate of Release or Discharge from Active Duty” reflecting the recommended correction. 
 
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 19 March 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. 
 

8/20/2020


Executive Director