Docket No: 3879-19  
Ref: Signature Date  
From: Chairman, Board for Correction of Naval Records  
To:  Secretary of the Navy  


Ref: (a) 10 U.S.C. § 1552 
     (b) SECDEF Memo of 3 Sep 14 “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” 
     (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) PDUSD Memo of 25 Aug 17 “Clarifying Guidance to MilitaryDischarge 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 w/enclosures 
      (2) Advisory opinion of 16 Dec 19 

1.  Pursuant to reference (a), Petitioner filed enclosure (1) with this Board requesting a change to his other than honorable (OTH) characterization of service due to a Traumatic Brain Injury (TBI). In light of current guidelines as reflected in reference (b) through (d), his case was reconsidered in accordance with Board for Correction of Naval Records procedures that conform to Lipsman v. Secretary of Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 

2.  The Board, consisting of reviewed Petitioner's allegations of error and injustice on 16 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 enclosures, relevant portions of Petitioner’s naval records, applicable statutes, regulations, policies.  

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.  On 30 June 1971, Petitioner reenlisted in the Marine Corps after serving over two years of prior honorable service.  During his service, he received two nonjudicial punishments (NJPs) for two periods of unauthorized absence (UA) totaling 22 days, and convicted by summary court-martial (SCM) of two periods of UA totaling 14 days.  Petitioner requested an other than honorable (OTH) for the good of service for 200 days of UA.  On 8 March 1974, Petitioner was discharged from the Marine Corps with an OTH characterization of service. 

c.On 16 October 2018, this Board considered Petitioner’s request to change his OTH characterization of service with no change.  At that time, he was asserting that his characterization of service should be upgraded based on his prior honorable service. 

d.With his application, Petitioner states that during his tour, he sustained a TBI after a car accident, as diagnosed by the Department of Veterans Affairs (VA).  Petitioner contends that prior to the accident, he was a good Marine, receiving Meritorious Masts and a Good Conduct Medal.  After the TBI, there was a distinct change in his behavior.  His TBI seriously affected his ability to function in the military, and resulted in repeated UA’s, difficulty managing relationships, and an in-service suicide attempt.  A VA psychologist opined that his TBI was a major contributing factor in his misconduct. Petitioner also, provided a brief in support of his application, and letters from treating providers. 

e.  Enclosure (2), an advisory opinion (AO) states that Petitioner is seeking to upgrade his characterization of service citing new evidence that his misconduct should have been attributed to an undiagnosed Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD) resulting from a motor vehicle accident that occurred while in service. In his personal statement to the BCNR, Petitioner cited a 24 April 1972, motor vehicle accident as the origin of his behavioral and psychological changes that led to his series of incidents that resulted in his OTH.  The AO noted that while in service Petitioner described increasing psychological symptoms and changes in behavior since the fall of 1972.  He was referred to psychiatry. The AO notes that the record contains a Doctor’s letter dated 9 March 2018 and 31 July 2018, that diagnoses Petitioner as having TBI and Depressive Disorder due to Traumatic Brain Injury, stemming from a 24 April 1972, motor vehicle accident and describes the range of psychological and behavior changes Petitioner experienced after the accident in 1972, and the linkage to the misconduct behaviors that began after his motor vehicle accident. The AO states that the accident was severe enough to cause loss of consciousness, retrograde amnesia, headaches, cognitive and behavioral impairments in function, irritability and anger control problems, among the more severe symptoms and that Petitioner continues to experience these symptoms to the present day requiring ongoing treatment for stability.  The AO concludes that there is sufficient evidence that the Petitioner incurred a TBI, and associated depressive disorder, from an event during his military service, and that his misconduct and substandard performance more likely than not, can be attributed to his TBI and Depressive Disorder. 

f.  Petitioner’s request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017. 

CONCLUSION 

Upon review and consideration of all the evidence of record, especially in light of enclosure (2),  the Board concluded that the Petitioner’s request warrants favorable action.  The Board reviewed his application under the guidance provided in references (b) through (d) intended to be covered by this policy.  

In this regard, the Board noted Petitioner’s misconduct, and does not condone his actions.  The Board considered the AO’s conclusion and the honorable nature of his first enlistment, and continued success into his second enlistment up until the motor vehicle accident and subsequent development of TBI and depressive symptoms. The Board noted that his misconduct occurred after the motor vehicle accident, and was a marked a departure from his previous good service.  Therefore, based upon Petitioner’s overall record of service, to include his prior honorable service, and given our current understanding of mental health conditions, relief in the form of his characterization of service should be changed to “General (under honorable condition).” 

RECOMMENDATION 
In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. 

Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) showing that on 8 March 1974, he received a “General (under honorable conditions)” characterization of service. 

That no further action be granted. 

A copy of this Report of Proceedings be filed in Petitioner’s naval record. 

Upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 22 January 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.