DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3370-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF 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,” 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,” 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) Case summary (3) Advisory Opinion dtd 10 Apr 2020 1. Pursuant to the provisions of reference (a), through counsel, 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 , , and ,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 10 April 2020 advisory opinion (AO) qualified mental health provider. 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 31 July 1965 c. From 6 June 1966 to 26 June 1967, the Petitioner served in various combat operations in . On 30 November 1966, the Petitioner received a diagnosis of a perforated left tympanic membrane, which the Petitioner contends was caused by a mortar explosion. d. In June 1967, the Petitioner left and returned to . At this time, he started to have performance deficiencies in the form of a series of imposition of nonjudicial punishment. His offenses included willful disobedience of, and communicating a threat to, a noncommissioned officer, as well as unauthorized absences and failing to obey a lawful order. Ultimately, on 26 August 1969, the Petitioner was convicted by a general court-martial of possession and distribution of heroin, for which he received a dishonorable discharge and served more than two years in prison. e. After leaving the Navy On 18 March 1984, the Petitioner was in a motorcycle accident, which caused serious damage to his lower leg and foot. He was subsequently evaluated and placed on limited duty for certain periods. 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 initial 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: Former member’s petition claims his misconduct is attributable to an undiagnosed TBI incurred during his deployment. Petitioner’s in-service clinical record provides evidence of symptoms consistent with TBI which he attributes to an undocumented mortar round blast during his Vietnam deployment. Though Petitioner has not provided any evidence of a post-discharge diagnosis of TBI, or any medical or mental health conditions (other than prostate cancer), his in-service clinical record supports his contention of possible TBI. Though the misconduct for which he received NJP’s could be attributed to a possible TBI (due to impulsivity, irritability, poor judgment), and even substance abuse could be seen as a maladaptive self-medication strategy, the charge of selling illegal substances would not be consistent with this explanation as a higher level, goal-oriented activity. Should the Petitioner choose to submit additional clinical information, specifically linking his misconduct to a diagnosable mental health condition, it will be reviewed in the context of his claims. The AO concluded, “based on the available evidence, it is my considered opinion that there is sufficient evidence that it is more likely than not the Petitioner may have incurred a TBI during the course of his military career. However, the evidence only partially supports that this TBI contributed to the full range of his in-service misconduct.” CONCLUSION Upon review and consideration of all the evidence of record, and in light of references (b) through (d), the Board found the existence of an error warranting partial 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 that only partial mitigation to be appropriate, given the partial support found in the AO, as well as the nature of the offense for which the Petioner was convicted. Accordingly, the Board determined to upgrade his discharge to general rather than honorable. RECOMMENDATION In view of the above, the Board directs the following partial corrective action: Petitioner’s naval record be corrected by issuing him a new DD Form 214 reflecting that his characterization of service be upgraded to general (under honorable conditions). That no further changes be made to Petitioner’s record. A copy of this report of proceedings shall be filed in Petitioner’s naval record. That upon request, the Department of Veterans Affairs is informed that Petitioner’s application was received by the Board on 28 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy. 9/21/2020 Executive Director