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 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 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 (2) Advisory Opinion (AO) of 29 July 2020 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his Other than Honorable (OTH) discharge be upgraded to Honorable, and his narrative reason for separation, separation authority, and separation code be changed due to a mental health condition he suffered from during his service that contributed to his misconduct. Enclosures (1) and (2) apply. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 21 September 2020. Although Petitioner did not file his application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo). Petitioner’s allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of his naval record, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo), and an advisory opinion (AO) provided by a qualified mental health professional which was previously sent to the Petitioner. 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. Petitioner enlisted in the Marine Corps and began a period of active duty on 12 July 1982. On 26 July 1982, he was identified as fraudulent entry due to non-disclosure of pre-service police involvement. However, a waiver was granted and Petitioner was allowed to remain on active duty. On 15 February 1983, he received nonjudicial punishment (NJP) for four days of unauthorized absence. On 26 February 1983, Petitioner was diagnosed with a Borderline Personality Disorder with current Psychotic Episode. On 1 March 1983, a psychiatric evaluation determined he had a Mixed Personality Disorder (immature, passive-aggressive with histrionic dysocial behavior), severe. Further hospitalization was not justified, and he was recommended for discharge since he was unwilling, not able, to respond meaningfully to concerned leadership. On 7 March 1983, Petitioner was counseled concerning his poor judgement, immature behavior and lack of response to leadership. On 14 March 1983, Petitioner received NJP for disobedience, drinking while on restriction, and falsifying official documents. On 21 March 1983, Petitioner was confined after cutting his hand and writing on the wall with his blood. He was diagnosed with Situational Adjustment Disorder, Sociopathic features, and Immature Personality Disorder. On 18 May 1983, Petitioner submitted a written request for separation in lieu of trial by court-martial for two specifications of failing to go to his appointed place of duty, six specifications of willful disobedience of a commissioned officer, four specification of disrespect toward a commission officer, and breaking restriction. On 26 May 1983, a staff judge advocate reviewed Petitioner’s request and found it to be sufficient in law and fact. On 31 May 1983, the separation authority approved Petitioner’s request and directed that he be discharged with an OTH discharge in lieu of trial by court-martial. On 10 June 1983, Petitioner was discharged from the Marine Corps with an OTH characterization of service. c. With his application, Petitioner contended he suffered from a severe mental health condition during his service that contributed to his misconduct. d. The AO states that there was no evidence of any pre-service diagnosis of a mental health condition and Petitioner denied in his enlistment applications and forms that he had any history of mental health conditions. Therefore, based on the available evidence, it was opined that there is insufficient evidence that Petitioner incurred a mental health condition as a result of his military service that would mitigate his in-service misconduct. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that the Petitioner’s request warrants favorable action in the form of partial relief. The Board reviewed his application under the guidance provided in references (b) through (e) intended to be covered by these policies. In this regard, the Board noted Petitioner’s misconduct, and does not condone his actions. The Board concurred with the AO in that there was insufficient evidence that Petitioner incurred a mental health condition as a result of his military service. However, based on the Wilkie Memo, the Board felt that clemency should be granted. The Board noted that had Petitioner’s administrative separation processing begun as a result of the psychiatric evaluation on 1 March 1983, further misconduct may not have occurred. Given Petitioner’s record up until 1 March 1983 and the Board’s current understanding of mental health conditions, relief in the form of an upgrade to Petitioner’s characterization of service to “General (under honorable conditions)” should be granted. In view of the foregoing, the Board finds the existence of an injustice warranting the following partial corrective action. RECOMMENDATION Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD 214) to show that on 10 June 1983, he received a “General (under honorable conditions)” discharge. No further action be granted. A copy of this report of proceedings be filed in Petitioner’s naval record. 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.