Docket No: 3747-19 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,” 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) Case summary (3) Petitioner’s statement dtd 6 Mar 13 (4) Advisory Opinion, Docket No: NR20190003747 of 8 Jul 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 correct his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service. Further, Petitioner requested the Board grant him a waiver of indebtedness which resulted from his administrative separation. Enclosures (1) and (2) apply. 2. The Board, consisting of , , and , reviewed Petitioner's allegations of error and injustice on 21 August 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 his naval service records, applicable statutes, regulations, and policies, as well as the enclosed advisory opinion (AO) from a qualified 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 reenlisted in the Marine Corps on 30 January 2010 after honorably serving on continuous active duty since his initial enlistment on 13 December 2004 which included combat operations in from 28 July 2009 to 19 January 2010. He deployed to a second time for combat operations from 20 March 2011 to 17 November 2011. On 25 January 2013, Petitioner received nonjudicial punishment for insubordinate conduct towards a staff noncommissioned officer (NCO). His record is incomplete in that it does not contain the documents pertaining to his administrative discharge but, based on his personal statement of 6 March 2013 (see enclosure (3)), which he submitted upon discharge with a request to “forward this to the highest authority you feel should have it,” Petitioner was facing special court-martial charges for the insubordinate conduct towards a staff NCO. According to the statement, Petitioner’s command would not allow him to plead guilty at NJP and be retained in the Marine Corps. The only acceptable option permitted by the command was Petitioner’s guilty plea at NJP with an agreement to waive his right to an administrative discharge board. Based on Petitioner’s DD Form 214, Petitioner accepted this option and, after he waived his procedural rights, the separation authority directed discharge with a general, under honorable conditions (GEN), characterization of service by reason of misconduct due to commission of a serious offense. On 6 March 2013, Petitioner was discharged with a GEN characterization of service. d. Petitioner contends he was suffering from Post-Traumatic Stress Disorder (PTSD) after his two kinetic deployments to as a Marine Raider assigned to Marine Special Operations Command. Specifically, he contends he “experienced everything war has to offer, from daily direct combat, to include killing of enemy fighters to losing friends, from striking IEDs in vehicles, to handling enemy prisoners, from accidental killing of women and children, from the sheer terror of being caught in a complex ambush while walking point on patrol.” After his second deployment, Petitioner was diagnosed with PTSD and contends his condition “for which he actively sought treatment” led to his misconduct and administrative separation. Petitioner further contends “nothing was done for my mental health while I was in service” because he was discouraged from seeking treatment while assigned to the teams because a “bad diagnosis would pull you from the group and sideline you from your brothers.” e. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 8 July 2020. The AO states Petitioner was treated for PTSD while in-service. The AO further states Petitioner’s insubordinate speech and behavior towards a superior, especially in the context of feeling unsupported by the command, is reflective of his reports of increased irritability, anxiety, and anger outbursts following his two combat deployments. These behaviors are also consistent with the behavior exhibited by service members suffering from PTSD. The AO determined there was sufficient evidence that Petitioner developed PTSD as a result of his military service and that his misconduct can be attributed to his PTSD. f. Petitioner also seeks remission of an alleged indebtedness. He contends Defense Finance and Accounting Services (DFAS) is seeking recovery of an “unearned portion of the signing bonus, totaling close to $17,000” which was triggered by his separation code. Additionally, DFAS is seeking recovery of $3,800 for a “non-settlement of an advance for a Do-It-Yourself Move.” CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. The Board reviewed his 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, applying liberal consideration and relying upon Petitioner’s diagnosed mental health conditions, determined there was sufficient evidence to support a finding that Petitioner’s mental health condition mitigated the misconduct that led to his administrative discharge. The Board, noting his two combat deployments, his performance as evidenced by his professional and conduct marks of 4.4/4.4 and the character references in his record, determined Petitioner’s service warranted an honorable characterization of service after the insubordinate conduct which led to his administrative discharge is mitigated by his in-service PTSD. The Board further determined Petitioner has not exhausted his administrative remedies regarding his request for remission of his indebtedness. With the change to Petitioner’s narrative reason for separation and separation code, he may further pursue remission with DFAS. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating his characterization of service as “honorable,” narrative reason for separation as “secretarial authority,” separation code as “JFF1,” separation authority as “MARCORSEPMAN 6421,” and reentry code as “RE-1J.” 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 3 April 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.