DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4999-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER XXX-XX-, USMC Ref: (a) 10 U.S.C. § 1552 (b) 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,” 25 August 2017 (c) USD Memo, “Guidance to Military Discharge Review Boardsand Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,”25 July 2018 Encl: (1) DD Form 149 with attachments (2) DD Form 214 (3) NAVMC 118(11), Administrative Remarks, 31 May 1989 (4) Standard Form 513, Medical Record: Consultation Sheet, 23 May 1989 (4) Medical Record Consultation Sheet dtd 31 Oct 89 (5) Standard Form 513, Medical Record: Consultation Sheet, 31 October 1989 (6) NAVMC 118 (12), Offenses and Punishments, 15 May 1990 (7) NAVMC 118 (11), Administrative Remarks, 4 May 1990 (8) Petitioner Memorandum, subj: Request for Separation in Lieu of Trial by Court-Martial, 14 August 1990 (9) SJA Memorandum, subj: Request for Separation in Lieu of Trial by Court-Martial in the case of [Petitioner], 21 August 1990 (10) Marks in Service (11) NDRB decision letter (12) Advisory Opinion, 25 August 2020 (13) F.O. Memorandum, subj: Response to Advisory Opinion, Docket No. 20190004999, [Petitioner], 17 September 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 characterization of service be upgraded to honorable, that the narrative reason for his separation be changed to “Secretarial Authority” and his reenlistment code changed to “RE-1.” 2. The Board reviewed Petitioner's allegations of error and injustice on 2 October 2020, and, pursuant to its regulations, determined the corrective action indicated below should be taken. While I agree with the Board that corrective action is appropriate under the circumstances, I disagree with the Board’s determination regarding the relief warranted. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval service record, and applicable statutes, regulations, and policies, to include references (b) and (c). 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 at the age of 17 pursuant to his mother’s approval and began a period of active duty on 1 November 1988. See enclosure (1). Petitioner asserts that his recruiter assured him that he would be able to specialize in “tanks.” d. In late April or early May 1989, Petitioner was dismissed from the Marine Corps Security Force (MCSF) training course for failing to meet the minimum standards. According to a counseling statement documenting his dismissal from the course, he exhibited and related his negative psychological predisposition toward the tasks attendant to MCSF duty. See enclosure (3). e. On 8 May 1989, Petitioner self-referred fora psychiatric evaluation for frequent “mood swings” since the age of 16. When he was evaluated on 23 May 1989, he indicated his dissatisfaction with his assignment to the infantry and preference for assignment to an armor unit. He explained that this dissatisfaction resulted in his disenrollment from the MCSF training course. He was determined to be “psychiatrically fit for full duty,” but not suitable for the Personnel Reliability Program. See enclosure (4). f. On 31 October 1989, Petitioner was referred for another psychiatric evaluation by a chaplain after he mentioned suicidal impulses in the context of his wish for a discharge. He again expressed his dissatisfaction with the Marine Corps and his frustration with his inability to change his MOS. The mental health provider found no evidence of a psychiatric disorder which would disqualify Petitioner for duty, but commented that Petitioner shows “personality characteristics of immaturity, impulsivity, conflict with authority, and manipulativeness.” The provider also found that these characteristics impaired Petitioner’s potential for satisfactory performance in demanding circumstances and his reliability under stress. See enclosure (5). g. Petitioner was absent without leave from 18 April 1990 to 23 April 1990. On 15 May 1990, he received nonjudicial punishment for this period of unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice. See enclosure (6). h. On 4 May 1990, Petitioner was counseled for disrespecting both a commissioned officer and a noncommissioned officer. See enclosure (7). i. Petitioner was absent without leave from 18 June 1990 to 10 July 1990, and then from 11 July 1990 to 17 July 1990. Upon his return from the second of these UAs, court-martial charges were preferred against Petitioner and he was placed in pretrial confinement. See enclosure (6). j. By memorandum dated 14 August 1990, Petitioner requested separation in lieu of trial by court-martial. In this request, he acknowledged that he would be separated under other than honorable (OTH) conditions if his request was approved. In a hand-written note attached to this request, Petitioner explained that he was requesting separation in lieu of trial by court-martial because he did not believe that his offense was serious enough to warrant a court-martial. See enclosure (8). k. By memorandum dated 21 August 1990, the Staff Judge Advocate (SJA) found Petitioner’s request for separation in lieu of trial by court-martial to be sufficient in law and fact. The SJA noted that although Petitioner’s total period of UA was less than 30 days, “this Marine is unrepentant and wants to get out of the[Marine] Corps as quickly as possible.” See enclosure (9). l. On 25 September 1990, Petitioner was discharged from the Marine Corps under OTH conditions for “conduct triable by courts-martial.” His reentry code was RE-4. See enclosure (2). At the time of his discharge, Petitioner’s average marks in service were 4.2 (proficiency) and 4.1 (conduct). See enclosure (10). m. The Naval Discharge Review Board reviewed an application from Petitioner to upgrade his characterization of service on 27 July 1992, and determined that the discharge was proper as issued and that no change was warranted. See enclosure (11). n. In enclosure (1), Petitioner acknowledged that he had a bad attitude as a young, stubborn, and immature Marine. He enlisted with the belief that he would be assigned to an Armor unit and was very dissatisfied with his assignment to Infantry duties. He was resentful and angry, and allowed these feelings to adversely affect his performance and conduct. He asserts that his conduct was mitigated by his youth and immaturity, as well as the mental health conditions that he suffered. Specifically, Petitioner was diagnosed with a personality disorder, and suggests that there is evidence he might also have been suffering from an adjustment disorder, which adversely affected his ability to accept his circumstances. More importantly, however, Petitioner acknowledged that he had to take drastic measures to change the course of his life following his discharge under OTH conditions, and described his actions over the last 29 years to do so. After starting off with minimum wage jobs, Petitioner was fortunate enough to get a job as a corrections officer with the state of in 1997. While serving in this capacity, he earned an Associate of Applied Science degree in Criminal Justice. In 2006, he was able to obtain a waiver to enlist in the Army National Guard (ARNG), with which he deployed to Afghanistan in 2007 and successfully performed the same infantry duties that had previously caused him so much consternation. This resulted in his exposure to combat action, for which Petitioner received a commendation and for which Petitioner currently holds a 50% disability rating from the VA for post-traumatic stress disorder (PTSD). While deployed in Afghanistan, Petitioner met a combat nurse from the who subsequently became his wife and with whom he has raised a family. This former nurse is currently service as a commissioned officer in the U.S. Navy. Petitioner subsequently deployed again in 2008 to help train the Ukrainian Army, and received an honorable discharge from his active-duty time with the Since completing his service in the , Petitioner has earned a Bachelor of Science degree in Public Safety Administration and a Master of Science degree in Social Work, and has worked with the Department of Veterans Affairs (VA) as a social worker, as well as in a variety of other capacities helping veterans and active-duty service members and their families. Finally, Petitioner provided character references from his leadership and civilian employment supervisors and coworkers attesting to his character and work ethic, and numerous certificates evidencing his volunteer work in the community. o. As part of the Board’s review, a qualified mental health providerreviewed Petitioner’s application and available records and provided an advisory opinion (AO) for the Board’s consideration. The AO confirms Petitioner’s psychiatric diagnoses of Personality Disorder and Occupational Problems, but primarily focused on the lack of evidence linking Petitioner’s PTSD to his service or misconduct in the Marine Corps. As a result, the AO found insufficient evidence of a mental health condition attributable to Petitioner’s service with the Marine Corps that may have mitigated Petitioner’s misconduct. See enclosure (12). p. By memorandum dated 17 September 2020, Petitioner’s attorney responded to the AO by pointing out that Petitioner’s diagnosed personalitydisorder provides evidence of a mental health condition that would have affected his behavior and judgment. Petitioner’s attorney also requested that theBoard consider all of Petitioner’s matters, specifically the evidence of Petitioner’s post-service conduct in accordance with reference (c). See enclosure (13). BOARD CONCLUSION: Upon careful and conscientious review of all of the evidence of record, the Board determined that Petitioner’s application warrants partial relief, as reflected below. In light of the mental health conditions raised by Petitioner’s application and naval record, the Board considered Petitioner’s application in accordance with theguidance of reference (b). Accordingly, the Board applied liberal consideration to Petitioner’s asserted mental health conditions and the impact that they may have had upon Petitioner’s conduct and judgment. In this regard, theBoard acknowledged and considered Petitioner’s in-service diagnosis with a personality disorder, and the potential impact that this condition may have had upon his judgment and conduct. Even acknowledging that this condition may haveimpacted Petitioner’s judgment and applying liberal consideration, however, the Board found that the severity Petitioner’s misconduct far outweighed any impact that this mental health condition would have had upon his misconduct. In this regard, the Board substantially agreed with the AO that there was insufficient evidence that Petitioner’s mental health condition mitigated his conduct within the Marine Corps. However, the Board did believe that the AO inappropriately focused its analysis on Petitioner’s post-Marine Corps service PTSD, as Petitioner never suggested that this condition excused or mitigated his conduct in the Marine Corps. In addition to applying liberal consideration to Petitioner’s mental health condition in accordance with reference (b), the Board also considered the totality of the circumstances to determine whether relief is appropriate in the interests of justice in accordance with reference (c). In this regard, the Board considered all potentially mitigating factors, including but not limited to, the fact that Petitioner was diagnosed with a personality disorder within the Marine Corps that may have impacted his judgment and decision making; Petitioner’s assertion that he was promised the opportunity to serve as a“tanker” by his recruiter, and the dissatisfaction that this unfulfilled promise would have caused; that Petitioner deployed to Honduras during his relatively short enlistment in the Marine Corps; that Petitioner spent approximately 45 days in pretrial confinement for less than 30 days of UA prior to this discharge under OTH conditions; that Petitioner demonstrated remarkable self-awareness and discipline by turning his life around after his discharge from the Marine Corps, accepting minimum wage jobs until finally obtaining an opportunity to serve as a corrections officer; that Petitioner obtained a waiver to enlist in the where he deployed twice and served with distinction, to include demonstrating courage and selflessness under fire during an enemy ambush; that Petitioner earned multiple commendations and an honorable discharge from his service in the ; Petitioner’s educational accomplishments, earned despite his OTH discharge, resulting in both a B.S. and M.S. degree; that Petitioner has devoted his expertise in social work to assisting veterans and service members; that Petitioner has demonstrated himself to be a productive and valuable member of society despite enduring the stigma of his OTH discharge; that Petitioner was awarded a 50% disability rating from the VA for PTSD related to his combat service in the; Petitioner’s relative youth and immaturity at the time of the misconduct that resulted in his discharge; and the passage of time since Petitioner’s discharge. Based upon this review, the Board found that an upgrade to Petitioner’s characterization of service is warranted in the interests of justice. Despite finding that relief is warranted in Petitioner’s case, the Board did not believe that an upgrade to honorable, as requested by the Petitioner, was warranted. While the Board was extremely impressed with Petitioner’s post-service record, particularly his enlistment and deployment with the and his continuing service to veterans and service members as a social worker, it also noted that Petitioner served less than two years of his enlistment in the Marine Corps and that a significant portion of this time was spent either UA, in confinement for his UAs, or expressing his dissatisfaction with the Marine Corps. Recognizing that a general (under honorable conditions) characterization of service is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record, the Board found that an upgrade to general (under honorable conditions) would serve the interests of justice. In addition to upgrading Petitioner’s characterization of service to general(under honorable conditions),the Board also found that Petitioner’s narrative reason for separation,separation code, and separation authority should be changed eliminate negative future implications for the Petitioner. It did not, however, find that a change to Petitioner’s reenlistment code was warranted under the circumstances. BOARD RECOMMENDATION: In view of the above, the Board recommends that the following corrective action be taken on Petitioner’s record: That Petitioner be issued a new DD Form 214 reflectinga characterization of serviceas “general (under honorable conditions)”; a narrative reason for separation of “Secretarial Authority”; a separation code of “JFF1”; and a separation authority of “MARCORSEPMAN 6421.” That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the VA be informed that Petitioner’s application was received by the Board on 8 May 2019. EXECUTIVE DIRECTOR’SCONCLUSION: I concur with the determination of the Board that relief is warranted in Petitioner’s case, but do not believe that the Board’s recommendation goes far enough to satisfy the interests of justice. Ibelieve that Petitioner’s post-service record is so meritorious that the interests of justice warrant upgrade to a fully honorable characterization of service. Petitioner has demonstrated conclusively that he has fully rehabilitated himself from the immature mistakes of his youth. Most significantly, Petitioner’s combat service in Afghanistan as part of the , serving in the same capacity that his younger self found to be unacceptable, persuaded me that Petitioner should be completely relieved of the stigma associated with his Marine Corps service. He distinguished himself under fire and suffered injuries from this combat service, as evidenced by his 50% disability rating from the VA for PTSD. Besides his meritorious service in the , he has also proven to be a very productive member of society. Overcoming the stigmatizing effect of his OTH discharge, Petitioner has pulled himself up from the menial jobs that he was limited to in the aftermath of his discharge from the Marine Corps, to first become a public servant as a Corrections Officer for the state of and more recently serve as a social worker assisting veterans and service members. Along the way, he has earned a M.S. degree, raised a family, and been a valuable member of his community with numerous volunteer endeavors. Petitioner was, by his own admission, young, stubborn and immature when he was in the Marine Corps. He spent 45 days in pretrial confinement for less than 30 days of UA, and has spent a lifetime with the stigma of an OTH ever since. Given his contributions to the Nation and society since that time, I believe that the interests of justice warrant the removal of all residual stigma from his Marine Corps service. EXECUTIVE DIRECTOR RECOMMENDATION: In view of the above, Irecommend that the following corrective action be taken on Petitioner’s record: That Petitioner be issued a new DD Form 214 reflecting a characterization of service as “honorable”; a narrative reason for separation of “Secretarial Authority”; a separation code of “JFF1”; a separation authority of “MARCORSEPMAN 6421”; and a reentry code of “RE-1J.” That Petitioner be issued an honorable discharge certificate. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the VA be informed that Petitioner’s application was received by the Board on 8 May 2019. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a trueand complete record of the Board’s proceedings in the above-entitled matter. 5. The foregoing action of the Board is submitted for your review and action. 1/19/2021 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Decision: Executive Director Recommendation Approved (Full Relief) 2/8/2021 Assistant General Counsel (M&RA)