Docket No: 5484-19 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , 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, ” 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,” 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 oftheir Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” 25 August 2017 (e) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 with attachments (2) NAVMC 118-2 (Offenses and Punishments) (3) DD Form 214 (4) BCNR Docket No. 09464-12, 24 October 2012 (5) BCNR Advisory Opinion, 21 September 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his other than honorable (OTH) character of service be upgraded to honorable. 2. The Board reviewed Petitioner’s allegations of error and injustice on 5 October 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 enclosure (1), relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and 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. 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 and began a period of active duty on 30 December 1996. See enclosure (3). d. On 1 August 1997, Petitioner received non-judicial punishment (NJP) for failure to obey a lawful order by consuming alcohol, in violation of Article 92, Uniform Code of Military Justice (UCMJ). On 4 August 1998, Petitioner received a second NJP for failure to obey a lawful order by consuming alcohol while under the age of 21, in violation of Article 92, UCMJ. On 19 November 1998, Petitioner received a third NJP for failure to obey a lawful order by consuming alcohol while under the age of 21, in violation of Article 92, UCMJ, and for drunk and disorderly conduct in violation of Article 134, UCMJ. On 25 January 1999, Petitioner was convicted by a summary court-martial (SCM) for disrespecting a noncommissioned officer in violation of Article 91, UCMJ, and for violating a lawful general order by consuming alcohol while under the age of 21. See enclosure (2). e. Petitioner waived his right to an administrative separation board, and on 28 April 1999 was discharged from the Marine Corps under OTH conditions for a pattern of misconduct.1 See enclosure (3). 1 Petitioner’s administrative separation documentation is not contained in his record, but his enclosure (3) indicates that he waived his right to a board hearing. f. Petitioner previously requested an upgrade to his characterization of service from this Board in Docket No. 094964-12 based upon his relative youth and immaturity at the time of his misconduct. By memorandum dated 24 October 2012, the Board rejected this previous request. g. Petitioner asserts that he was assaulted by a group of Marines from his unit in a hazing incident, which triggered memories of childhood abuse and caused him to become depressed, anxious, and withdrawn. As a result, he began having nightmares and exhibited somatic and psychological symptoms indicative of post-traumatic stress disorder (PTSD). Having not been diagnosed or treated for PTSD at the time, he turned to alcohol to deal with the trauma and fear resulting from the assault. Petitioner asserts that his misconduct and performance downturn resulted from this incident and his efforts to self-medicate to deal with pain it caused. In support of his application, Petitioner provided documentation reflecting that the Department of Veterans Affairs (VA) has awarded Petitioner a 50 percent disability rating for service connected PTSD, and recognizes his service as honorable for VA purposes. h. As part of the Board’s review process, the BCNR’s Physician Advisor, who is a medical doctor and a Fellow in the American Psychiatric Association, reviewed Petitioner’s available records and issued the advisory opinion (AO) at enclosure (5). The AO found that although Petitioner’s in-service medical records contained no direct evidence of traumatic incidents, mental health symptoms, or conditions indicating he suffered from PTSD, they do provide indirect evidence of psychological symptoms and behavioral changes that are consistent with PTSD. These symptoms and behaviors included substance abuse as a maladaptive coping mechanism, significant misconduct and marked decrease in performance marks and evaluations following the trauma, and psychological symptoms of depression, anxiety, social withdrawal, nightmares, fear, and insomnia. Accordingly, the AO concluded that there is sufficient objective evidence that Petitioner exhibited psychological symptoms and behaviors consistent with PTSD as a result of his military service, and that his misconduct may be mitigated by his experience of PTSD. i. Pursuant to the guidance of references (b) through (d), the Board applied liberal consideration to Petitioner’s contentions he suffered from PTSD at the time of his misconduct, and that his PTSD experience may have mitigated his misconduct. The Board also applied special consideration to the VA’s determination that Petitioner’s PTSD was service connected. In addition to applying the guidance of references (b) through (d) to its consideration of Petitioner’s mental health condition and the impact that it may have had upon his conduct, the Board also considered the totality of the circumstances to determine whether the interests of justice warrant relief in accordance with the guidance of reference (e). In this regard, the Board considered, among other factors, Petitioner’s description of the assault at the hands of his fellow Marines that produced his mental health issues; that Petitioner had suffered childhood abuse which adversely influenced his response to the hazing incident; that Petitioner was not diagnosed or treated for PTSD following the hazing incident, which caused him to self-medicate with alcohol to deal with the pain; that Petitioner’s use of alcohol for this purpose caused a downward spiral that contributed to the misconduct resulting in his discharge; that Petitioner’s mental health conditions may have contributed to the misconduct for which he was discharged; that Petitioner has continued to suffer the effects of PTSD, to include migraine headaches related to his PTSD which resulted in a 50 percent disability rating from the VA; that the VA granted Petitioner’s application for “unemployability” due to his disabilities; the Petitioner’s relative youth and immaturity at the time of his misconduct; and that a significant period of time has passed since Petitioner’s discharge. MAJORITY CONCLUSION: After careful and deliberate review of Petitioner’s case, the Majority of the Board determined that the interests of justice warrant upgrading the characterization of Petitioner’s service to general (under honorable conditions). Applying the liberal consideration standard discussed above, the Majority found that Petitioner’s misconduct was mitigated by the factors discussed above, particularly his experience of PTSD and its accompanying symptoms. As the Majority found these mitigating factors to outweigh the severity of Petitioner’s misconduct, it determined that an upgrade to Petitioner’s characterization of service is warranted under the totality of the circumstances. The Majority did not, however, find that the mitigating factors outweighed Petitioner’s misconduct so significantly as to justify upgrade an upgrade of his characterization of service to honorable. In this regard, the Board found that the quantity and nature of Petitioner’s misconduct was so significant that his discharge for misconduct was warranted, even under the liberal consideration standard discussed above. As discharges for misconduct are typically not characterized as fully honorable, and finding that the mitigating factors discussed above did not excuse or so significantly outweigh the Petitioner’s misconduct to justify the full relief requested by the Petitioner, the Board determined that an upgrade of Petitioner’s characterization of service to honorable is not warranted. For the same reason, the Majority did not find that Petitioner’s narrative reason for service, separation code, or re-entry code should be changed. Accordingly, the Majority determined that the interests of justice would be properly served by upgrading Petitioner’s characterization of service to general (under honorable conditions). MAJORITY RECOMMENDATION: In view of the above, the Majority recommends the following corrective action on the Petitioner’s record: That Petitioner be issued a new DD Form 214 indicating that he was discharged on 28 April 1999 with a general (under honorable conditions) characterization of service, that that the narrative reason for separation be amended to remove reference to the board waiver. That no further corrections be made to Petitioner’s record. 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 30 May 2019. MINORITY CONCLUSION: The Minority of the Board also carefully and deliberately reviewed the Petitioner’s case under the liberal consideration standard discussed above. However, the Minority found that the totality of the circumstances did not warrant any relief. In reaching this finding, the Minority found the quantity and nature Petitioner’s misconduct to be so significant that it outweighed the all of the potentially mitigating circumstances. The Minority did not question whether Petitioner suffered from PTSD; it simply did not find that the circumstances adequately mitigated Petitioner’s conduct to warrant relief under the circumstances. Accordingly, the Petitioner found no error or injustice in Petitioner’s OTH characterization of service, and recommended that no relief be granted. MINORITY RECOMMENDATION: In view of the above, the Minority recommends that no corrective action be taken on the 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. The foregoing action of the Board is submitted for your review and action. Assistant General Counsel (Manpower and Reserve Affairs) MAJORITY Recommendation Approved (Partial Relief – Upgrade to General (Under Honorable Conditions)) MINORITY Recommendation Approved (Deny Relief) Petitioner’s Request Approved (Full Relief – Upgrade to Honorable) 12/22/2020