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 Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (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 (Kurta Memo) (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 6 August 2019 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with a reconsideration 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 2 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 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. Regarding the Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered the Petitioner’s case based on the evidence of record. d. Petitioner enlisted in the Marine Corps and began a period of active service on 23 August 1988. On 29 March 1989, Petitioner received non-judicial punishment (NJP) for violating a lawful order and attempting to bribe a police officer. On 1 November 1989 Petitioner was issued a “Page 11” counseling warning (Page 11) for failing to maintain sufficient funds in his bank account resulting in multiple bounced checks. e. On 14 February 1990, Petitioner received NJP for unauthorized absence (UA), two specifications of disobeying a lawful order in violation of his aftercare program, and two specifications of writing bad checks. On 26 February 1990 the Petitioner was issued a Page 11 warning for frequent involvement of a discreditable nature with military authorities. On 20 March 1990 the Petitioner was issued a second Page 11 warning for his frequent involvement with military authorities. On 24 June 1991 Petitioner received NJP for writing three bad checks to the Marine Corps Exchange. On 12 August 1991, Petitioner was convicted at a Summary Court-Martial of UA and for violating a lawful order. f. On 31 October 1991, Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct. He consulted with counsel and initially elected his right to present his case to an administrative separation board. On 7 January 1992 Petitioner expressly waived his right to an administrative separation board. On 23 January 1992, the Staff Judge Advocate for the separation authority determined that Petitioner’s administrative separation was legally and factually sufficient. Ultimately, on 4 March 1992, Petitioner was discharged from the Marine Corps with an Under Other Than Honorable Conditions (OTH) characterization of service, with “Misconduct – Pattern of Misconduct (Administrative Discharge Board Required But Waived)” as the narrative reason for separation on his DD Form 214. g. Petitioner’s final overall conduct trait average assigned on his periodic evaluations during his enlistment was 3.0. 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. h. Petitioner contended that he was suffering from post-traumatic stress disorder (PTSD) that affected his behavior and decision-making skills. In the absence of proper treatment, Petitioner stated he turned to alcohol to self-medicate his PTSD symptoms, which in turn led to misconduct resulting in his OTH discharge. Petitioner argued that the Board should view his PTSD as a mitigating factor in the misconduct underlying his discharge and upgrade his discharge. i. In January 2018, the Veterans Administration granted Petitioner service-connection for treatment purposes for PTSD. j. 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 6 August 2019. The MD opined that there was sufficient objective evidence that Petitioner exhibited behaviors associated with PTSD during his military service and that his misconduct may be mitigated by his experience of trauma and development of PTSD. CONCLUSION: Upon review and consideration of all the evidence of record, and especially in light of the documented PTSD service-connection, 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 diagnosed PTSD and any related mental health issues should mitigate some, but not all, of the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s PTSD-related condition as a possible causative factor in the misconduct contributing to his discharge characterization was 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 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. The Board specifically noted that the Petitioner received NJP and was also counseled for bounced checks well in advance of his triggering incident in the Philippines, and the Board determined that this misconduct in no way could be attributed to any mental health concerns. 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),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the reentry/reenlistment code be changed to “RE-1J.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That Petitioner be issued a new General (Under Honorable Conditions) discharge certificate. 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 4 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.