DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3768-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: Ref: (a) 10 U.S.C. § 1552 (b) SECDEF memo of 3 Sep 14, “Supplemental Guidance to Military Boards for Correction of Military/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) Mental Health Condition Advisory Opinion of 9 July 2019 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board) with a request to upgrade his characterization of service. 2. The Board, consisting of , reviewed Petitioner’s petition containing certain allegations of error and injustice on 10 October 2019, 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 Petitioner’s naval service records and medical records, applicable statutes, regulations, policies, and the enclosed 9 July 2019 advisory opinion (AO) from a qualified 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. Petitioner enlisted in the Marine Corps and began a period of active service on 4 September 1964. On 15 September 1964, the Petitioner went to non-judicial punishment (NJP) for unauthorized absence (UA). On 22 December 1965, Petitioner went to a special court- martial (SPCM) for UA lasting 166 days. d. Between 18 June 1966 and 15 September 1966, Petitioner participated in five different combat operations against hostile forces in . On 14 October 1966, Petitioner went to a second SPCM for UA lasting 15 days while in the . On 7 January 1967, Petitioner went to NJP for misbehavior as a sentinel. On 16 May 1967, Petitioner went to NJP for being absent from his appointed place of duty. On 16 January 1968, while stationed back in the United States, Petitioner was convicted by a third SPCM for UA lasting 114 days. Collectively, Petitioner’s misconduct resulted in excess of 18 months of lost time. At each of Petitioner’s SPCMs, his sentence included a discharge from the naval service with a bad-conduct discharge (BCD), each of which were remitted by convening authority action. e. On 24 May 1968, Petitioner’s command initiated administrative discharge proceedings to separate him from the naval service by reason of reason of unfitness due to frequent involvement of a discreditable nature with civil or military authorities. The Petitioner elected in writing to waive his rights to consult with counsel and to present his case to an administrative separation board. On 20 June 1968, the Commanding General, , approved the separation recommendation and directed that Petitioner be separated from the naval service with an undesirable discharge. f. Ultimately, on 24 June 1968, Petitioner was separated with a “conditions other than honorable” (OTH) characterization of service. Petitioner’s final overall proficiency and conduct trait averages assigned on his periodic evaluations during his enlistment were 3.77 and 2.93, respectively. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 3.8 in proficiency (proficient and industrious performance of duty), and 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. g. On 2 June 1977, the Petitioner’s discharge was administratively upgraded to general (under honorable conditions) (GEN), pursuant to the Department of Defense Special Discharge Review Program (DoDSDRP). However, in August 1978, the Naval Discharge Review Board made a final determination the Petitioner does not qualify for upgrading under the new uniform standards for discharge review, and determined that the character of discharge received from the DoDSDRP would not change. h. On 7 May 1981, the Department of Veteran’s Affairs (VA) denied Petitioner’s claim for benefits because the VA determined that Petitioner’s discharge was issued under conditions which constitute a bar to the payment of VA benefits. i. In sum, Petitioner contended that he was suffering from post-traumatic stress disorder (PTSD) as a result of traumatic events he experienced during his combat tour in , and argued that the Board must view his PTSD as a mitigating factor in his misconduct and upgrade his discharge. Petitioner also contended that the pre-Vietnam 166-day UA following boot camp was minor in nature and an effort to avoid hazing he was experiencing. j. As part of the review process, a Navy Medical Officer (NMO), who is also a licensed clinical psychologist, reviewed Petitioner’s contentions and the available records. The NMO issued the 9 July 2019 AO, enclosure (2), observing that Petitioner has a service-connected PTSD diagnosis. The NMO concluded that some, but not all, of Petitioner’s misconduct can be attributed to PTSD, given that his UA during and following his deployment can be considered consistent with PTSD avoidance symptoms. However, the NMO opined that there is insufficient evidence to attribute all of the Petitioner’s misconduct to his service-connected PTSD, namely his pre-Vietnam UA lasting 166 days. CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of the AO and the VA’s service-connected PTSD determination, the Board concludes that Petitioner’s request warrants relief under the uniform standards for discharge review. 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 on “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. Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform veterans about how to achieve relief with these types of cases. 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, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed mental health issues mitigate some of the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s PTSD-related conditions as a causative factor in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that GEN discharge under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of virtually all Veterans’ benefits. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. In accordance with the published guidance, the Board gave liberal and special consideration to his record of service, and his contentions about any PTSD he may have experienced and its possible adverse impact on his service. However, even under the liberal consideration standard, the Board concluded that PTSD was only related to and/or mitigated some, but not all, of the misconduct that formed the basis of his subsequent discharge. The Board noted that there is no evidence in the record, and the Petitioner submitted none, to support his contention that he was being hazed or mistreated. The Board opined that the Petitioner had no legal justification or excuse for his initial 166-day UA prior to his Vietnam deployment, and that such UA standing alone was serious enough to warrant an undesirable or punitive discharge under the circumstances. Accordingly, the Board concluded that certain serious misconduct of the Petitioner was not attributable to any mental health issues, and also noted that the Petitioner’s cumulative trait averages in proficiency and conduct clearly did not qualify for an honorable discharge. Moreover, the Board also noted that the record shows Petitioner was notified of and waived his procedural rights in connection with his administrative separation. In doing so, he gave up his first and best opportunity to advocate for retention or a more favorable characterization of service. Lastly, the Board unequivocally did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. Additionally, the Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge is appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record holistically, given the totality of the circumstances and purely as a matter of clemency, that the Petitioner only merits a GEN characterization of service, and no higher. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action under the uniform standards for discharge review. 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,” and the separation code be changed to “JFF1.” That any and all remarks on the DD Form 214 MC, as amended, specifically referring and/or related to a discharge upgrade pursuant to the DoD Special Discharge Review Program, be removed in their entirety. That any and all DD Forms 215 MC be removed from the record in their entirety. Following the corrections to DD Form 214 MC (as amended), that all other information currently listed on such DD Form 214 MC remain the same, including the RE-4 reentry/reenlistment code. Petitioner shall be issued a new DD Form 214 MC, Armed Forces of the United States Report of Transfer or Discharge. That in the event that Petitioner’s current DD Form 214 MC is obsolete and cannot be corrected and/or reissued, that Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty, reflecting the recommended corrections above. 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 29 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.