Docket No: 4865-19 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) Advisory Opinion, MLCS Docket No: NR20190004865 of 9 May 19 (3) letter of 5 Sep 19 1. Pursuant to reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board grant him clemency in the form of changes to his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 21 May 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. The Board also considered the enclosed advisory opinion (AO) from a mental health provider and rebuttal response submitted by the Petitioner through counsel. 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 enlisted in the Marine Corps on 27 June 1986. He was counseled on 16 September 1987 concerning his exhibited lack of financial responsibility by uttering personal checks with insufficient funds. On 28 September 1987, he received nonjudicial punishment (NJP) for an unauthorized absence. On 23 November 1987, he received a second NJP for disrespecting a corporal and failing to pay several debts. After two alleged suicide attempts, on 25 November 1987, Petitioner was diagnosed with malingering, mixed personality disorder with borderline, narcissistic and immature features. On 19 January 1988, Petitioner was convicted by special court-martial (SPCM) for attempting to injure himself to avoid service. The SPCM adjudged forfeiture, reduction in rank, confinement and a bad conduct discharge (BCD), which the convening authority suspended. On 9 December 1988, Petitioner was convicted by SPCM for wrongful use of a controlled substance and adjudged a BCD, hard labor, and forfeiture. The BCD was subsequently approved at all levels of review, and on 21 March 1989, Petitioner was discharged. d. Petitioner, through counsel, contends his discharge was an injustice because his mental health condition was a major contributing factor in his misconduct, making clemency warranted pursuant to references (b) through (d). Specifically, Petitioner contends the following: 1) Petitioner has a condition that excuses and mitigates the discharge. Specifically, he has been diagnosed with Post-Traumatic Stress Disorder (PTSD) and Bipolar Disorder. 2) Petitioner’s mental health condition existed during service and, according to the mental health professional treating Petitioner, “it is highly likely that Petitioner’s pre-existing conditions were aggravated by his service.” 3) Petitioner’s mental health condition excuses and mitigates the discharge because his mental health disorder was a major contributing factor in the misconduct. Specifically, he contends: a) The Marine Corps knew Petitioner’s history because he disclosed his “accidental suicide” in his pre-service documentation. During his first year of service, his performance was excellent but eventually the “staunch lifestyle of the Marine Corps, his inability to find assistance for his mental health conditions, and the numerous male authority figures asserting power over him began to trigger” his PTSD. b) His symptoms were apparent, but the Marine Corps failed to provide Petitioner with mental health care. The Marine Corps “misread” his suicide attempts as an “attempt to escape from the military service rather than an attempt to escape from his mental health conditions.” c) His mental health conditions affected his cognition and behavior and were directly responsible for the misconduct that led to his separation. d) The timing of his misconduct and “incredibly rapid decline in performance” support Petitioner’s mental health provider’s contention that his pre-existing mental health conditions were triggered by his service in the Marine Corps. Specifically, Petitioner contends his NJPs for disrespect and failing to pay debts are an indication of a loss of impulse control common with those suffering from PTSD or bipolar disorder. He further contends his suicide attempts were an “extreme form of avoidance behavior” and his drug use was an attempt to self-medicate his symptoms. e) His mental health condition outweighs his misconduct. Specifically, Petitioner contends he engaged in some “minor impulsive misconduct” common for individuals suffering from the mental health conditions that Petitioner suffers and alleges that his most serious misconduct, attempting suicide and self-medicating, are the “tragic result of those conditions going untreated.” 2) Petitioner contends his service meets the requirements of a general, under honorable conditions, characterization of service. He contends the quality of his service has been “honest and faithful” however, “significant negative aspects of his misconduct or performance of duty outweigh the positive aspects of his service record.” Petitioner specifically contends he maintained 4.1/4.1 PRO/CON scores during the first year of his enlistment, and his conduct only began to decline when his PTSD and other mental health conditions became triggered during his deployment. 3) In his submission, Petitioner explains the significant childhood trauma which led to his undiagnosed PTSD and a suicide attempt at the age of 15. He contends he did not receive proper treatment for his childhood PTSD and bipolar disorder while in the Marine Corps and today finds it difficult to find gainful employment due to the severity of his conditions. Petitioner also contends he has been homeless many times and hospitalized seven times for psychiatric purposes. e. As part of the Board’s review, a mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 9 May 2019, enclosure (2). The AO states Petitioner is currently diagnosed with PTSD and bipolar disorder that pre-date military service. The AO states there were “inconsistencies with the Petitioner’s military medical record and his later report to his civilian provider” and determined additional records and treatment information were necessary to render an alternate opinion. The AO states Petitioner’s UA and disrespect could potentially be attributed to PTSD symptoms but that it was “less reasonable to attribute failure to pay debts to a mental health condition.” The AO further states it seems “more likely” to attribute Petitioner’s suicidal gestures to “long-standing characterological traits rather than due to PTSD” and that “it is a possible his marijuana use was a return to pre-service behavior rather than an exacerbation of mental health symptoms.” f. In his rebuttal of 5 September 2019, found at enclosure (3), Petitioner’s counsel addressed several points made in the AO and submitted additional post-service mental health treatment records, statements, and reference material. Specifically, Petitioner, through counsel, provided the following rebuttal: 1) Inconsistencies between Petitioner’s military and civilian medical records exist because the medical observations and conclusions made during service were not based upon a comprehensive understanding of his childhood trauma and lifelong psychological condition. Inconsistencies exist because Petitioner’s malingering and personality disorder diagnoses during service were made after a “snapshot” psychological analysis of his condition and without knowledge of his complete childhood history whereas his civilian providers diagnosed within a “movie” presentation of his symptom presentation and reported childhood experiences over time. 2) Although Petitioner did not report his severe childhood trauma during service, he has come to report those events over time as he has become more comfortable with his civilian mental health providers. 3) Interpretation of Petitioner’s psychological condition during service, which was made without the benefit of knowledge of his childhood trauma, is contrary to the in-service psychiatric observations. Petitioner was indeed suffering from significant emotional distress from his dislike of the Marine Corps but his suicidal gestures during service should not be interpreted as isolated incidents nor as feigning mental illness to avoid duty, but as evidence of his acute psychological decompensation. 4) Although Petitioner admitted to psychiatric staff that his actions were malingering, and despite pleading guilty at SPCM to intentionally injuring himself to avoid service, Petitioner was not, and could not have been, aware as a lay person of the extent to which his pre-existing mental health issues contributed to his psychological decompensation. Petitioner was not able to effectively communicate the previous trauma he had been through, what he was feeling, and why. All he really knew at that time was that he was experiencing emotional and mental health issues. 5) The primary consequence of Petitioner’s childhood was a lifetime of mental health issues that did not stabilize after his discharge. He has had seven inpatient hospitalizations. 6) Petitioner’s suicidal behavior during service, rather than being explained by “long-standing characterological traits,” was part of a decade-long, lifetime pattern of suicidal behavior that was more likely a manifestation of symptoms of his then-untreated mental health conditions originating from childhood sexual and emotional trauma. 7) In response to the AO’s statement that “there is no indication of the nature of their relationship,” Petitioner provided rebuttal statements and treatment records which reflect Petitioner’s more than 42 sessions with the readjustment therapist. 8) Petitioner’s marijuana use during service was not a return to pre-service behavior but best understood as an attempt to self-medicate. 9) Petitioner should not have been qualified for military service. His psychiatric condition was not indicated to be “normal” during his clinical exam. It was recommended that he be further examined by a specialist for a “psych consult” but it is unclear whether he had a consult prior to entry. If Petitioner had been thoroughly evaluated based on his pre-enlistment answers and disclosures, it is possible his unstable mental health condition would have been properly identified. Per Department of Defense guidelines, Petitioner’s childhood traumatic experiences, latent mental health disorders, suicidality, and prior psychiatric hospitalization should have rendered him unqualified for military service at the outset. 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 BCD. The Board specifically noted Petitioner’s pre-service disclosure of “accidental suicide” and the decision to court-martial him after his suicide attempts rather than administratively process him for separation. However, the Board also noted that Petitioner’s misconduct did not begin until more than a year after his enlistment nor did his undiagnosed PTSD surface during boot camp, a time when “numerous male authority figures” would have been “asserting power over him.” Relying on the AO, the Board determined Petitioner’s repeated misconduct, as evidenced by two NJPs and two SPCMs, and specifically his wrongful drug use, could not conclusively be attributed to his mental health conditions. Concluding that a BCD was a harsh punishment based on the mitigating mental health condition, the Board determined Petitioner’s misconduct warranted an other than honorable characterization of service. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “other than honorable.” 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 12 July 2018. 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. 6/30/2020