Docket No: 5110-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER , USMC, XXX-XX- 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 Post Traumatic Stress Disorder,” 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) USD Memo, “Clarifying Guidance to Military Discharge Review Boards and 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 () (e) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments (2) Case Summary (3) Advisory Opinion of 21 October 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with a request to upgrade his characterization of service. Enclosures (1) through (3) apply. 2. The Board, consisting of , reviewed Petitioner's application containing certain allegations of error and injustice on 6 November 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 his naval service records and his medical records, applicable statutes, regulations, policies, and an advisory opinion (AO) from a qualified 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 28 July 1969. On 6 July 1970 Petitioner was convicted at a Special Court-Martial of insubordinate conduct and destruction of non-military property. On 8 September 1970 Petitioner was convicted at a Summary Court-Martial of unauthorized absence (UA). On 18 September 1970 Petitioner underwent a psychiatric evaluation. The Medical Officer (MO) diagnosed Petitioner with a passive-aggressive personality with high homicide and suicide potential. The MO determined that Petitioner was mentally competent and responsible for his actions and still psychiatrically fit for duty. However, the MO determined that Petitioner had high potential for violent action and should not carry a weapon. d. On 7 December 1970 the Petitioner commenced a period of UA. The Petitioner’s UA lasted 106 days and terminated with his arrest by the on 23 March 1971. e. Following Petitioner’s return to military authority, on 31 March 1971 Petitioner submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for both his 106-day UA and another UA lasting six days. Prior to submitting this discharge request, the Petitioner conferred with a qualified military lawyer, at which time he was advised of his rights and warned of the probable adverse consequences of accepting such a discharge. As a result of this course of action, Petitioner was spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. On 30 April 1971 the Petitioner was separated from the Marine Corps with an other than honorable (OTH) discharge. f. Based on his available service records, Petitioner’s overall conduct trait average assigned on his periodic performance evaluations during his enlistment was 3.13. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. g. In short, Petitioner contended that he was suffering from PTSD and traumatic brain injuries (TBI) that affected his behavior and decision-making skills. Petitioner argued that the Board must view his PTSD and TBI as mitigating factors in the misconduct underlying his discharge and upgrade his discharge characterization. h. As part of the review process, the BCNR Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records and issued an AO dated 21 October 2020. The MD opined that there was insufficient evidence Petitioner exhibited psychological symptoms or changes in behavior during his military service attributable to PTSD or other mental health conditions, or that Petitioner’s in-service misconduct could be attributed to PTSD or other mental health conditions. However, the MD opined that there was sufficient evidence Petitioner experienced multiple significant head traumas and likely exhibited early symptoms of TBI attributable to his military service that may have mitigated Petitioner’s misconduct. CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of the documented head injuries sustained by the Petitioner in both August and September of 1969, the Board concludes that Petitioner’s request warrants relief. 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. 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. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s TBI and any related mental health issues should mitigate the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s TBI-related conditions as a possible causative factor in the misconduct contributing to his discharge characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service with an OTH, and that a discharge upgrade is appropriate at this time. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations, and the Petitioner’s overall active duty trait average in conduct did not meet the Marine Corps minimum of a 4.0 for a fully honorable characterization. The Board determined that Petitioner’s conduct/military behavior marks during his active duty career were a direct result of his misconduct. The Board also noted when a Marine is requesting a separation in lieu of a court-martial, that an honorable discharge is appropriate only if the Marine’s service is otherwise so meritorious that any other characterization of service would be clearly inappropriate. The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record even under the liberal consideration standard for mental health conditions, and that a general (under honorable conditions) (GEN) discharge characterization and no higher was appropriate. Additionally, the Board determined that, in fairness to those Marines who serve honorably and without incident, Marines should receive no higher discharge characterization than is due. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record holistically, and 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. That Petitioner’s character of service be changed to “General (Under Honorable Conditions).” Petitioner shall be issued a new DD Form 214 MC. That Petitioner be issued a new general (under honorable conditions) discharge certificate. That if the DD Form 214 MC is obsolete and cannot be reissued, that Petitioner be issued a new DD Form 214, “Certificate of Release or Discharge from Active Duty” reflecting the recommended correction. 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 26 June 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.