Docket No: 6033-19 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) 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 (e) USD memo of 25 Jul 18, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 w/attachment (2) DD Form 214 (3) Informal Inquiry dtd 12 Nov 85 (4) Offenses and Punishments (5) DD Form 214 (6) Advisory Opinion, Docket No: NR20190006033 of 19 Jul 19 (7) Rebuttal package to AO of 19 Jul 19 (8) Additional information/VA determination (9) Updated Advisory Opinion, Docket No: NR20190006033 of 31 Dec 19 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted Marine, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting correction to his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service. His case, which was most recently denied by the Board in January of 2014, was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board reviewed Petitioner’s allegations of error and injustice on 11 June 2020 and, pursuant to its regulations, determined that the 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 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 regulation 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 2 March 1982. After serving honorably during his initial enlistment, he reenlisted for three years on 20 July 1984. See enclosures (2) and (3). d. On 7 August 1984, Petitioner received nonjudicial punishment (NJP) for an unauthorized absence (UA) from 20 July 1984 to 30 July 1984. He was awarded a forfeiture of pay. See enclosures (3) and (4). e. On 23 October 1984, Petitioner received NJP for wrongful use of marijuana and failure to go, at the time prescribed, to his appointed place of duty. He was awarded forfeiture of pay, reduction in rank, and extra duties. See enclosure (4). f. On 5 November 1985, Petitioner received a third NJP for wrongful use of marijuana. He was awarded forfeiture of pay, reduction in rank, and extra duties. See enclosure (4). g. On 12 November 1985, an informal inquiry was conducted by the Legal Officer, Headquarters and Headquarters Squadron, Marine Corps Air Station , to determine Petitioner’s fitness for retention or discharge. The Legal Officer determined “it is evident” that Petitioner is “of no further value to the U.S. Marine Corps” and recommended he be administratively separated by reason of misconduct for drug abuse with a characterization of service of under other than honorable conditions. See enclosure (3). h. Petitioner’s record is incomplete in that it does not contain his administrative separation documentation but a review of his DD Form 214, reflects that, after Petitioner waived his procedural rights, the discharge authority directed administrative separation by reason of misconduct due to drug abuse with an other than honorable (OTH) characterization of service. See enclosure (5). i. On 6 February 1986, Petitioner was discharged with an OTH characterization of service by reason of misconduct due to drug abuse. See enclosure (5). j. In Petitioner’s application, Petitioner requests an upgrade to his discharge characterization and asserts that his record is in error or unjust for the following reasons (enclosure (1)): (1) Petitioner contends his discharge was “wrongfully and induced by my appointed military lawyer to accept an OTH and waived my right for an administrative discharge board and lost my only change to be retained or a better characterization of service.” He further contends he lost the opportunity to explain “the horrible condition and bad experiences as a native islander Spanish speaking Puerto Rican exposed continuously 4 years active in the Marine Corps that led to PTSD not diagnosed while on active duty and resulting experimenting with marijuana.” (2) Petitioner contends references (b) through (d) “immeasurably” strengthen and support his request for relief. (3) Through counsel, Petitioner contends he faced military prejudice during his enlistment. As supporting information, Petitioner submitted discussions of actions taken by Congress and the President “to find, correct, and recognize historical discrimination” and also submitted a lesson in military history regarding discrimination specifically toward Puerto Ricans. (4) Petitioner contends he endured unacceptable hazing and numerous instances of assault that were “vicious hazing” and “went far beyond everyday boot camp regimen building Marine discipline.” Specifically, he contends: (a) He was branded with appalling names during boot camp. (b) Basic training was difficult because of his deficient English, and his instructors were unsympathetic and treated him as one who lacked motivation. (c) He was extremely lonely, never connected with a group, and did not “fit in with white or black.” (d) Boot camp was his first time “off the island of ” whereas all the other in his unit were born in the United States. (e) He was denied bathroom privileges, made a “laughing stock,” and denied a water canteen that worked. (f) He requested duty in but was denied. (g) He was physically assaulted six times and “all this events still vivid in my mind, they come and go depending on situations”: a. February 1982 when he was “treated like dirt and threatened in front of all civilians” when a “black D.I. probably 6’3” suddenly appears from nowhere in front of me and he slap and grab my yellow envelop with my orders and started yelling at me…” b. February 1982 when “checking in didn’t let me to use the bathroom at all in 2 days and I had to snitch out late at night and jump out thru a window and pee…” c. February 1982 when the “D.I. took a big aluminum trash can throw it directly at me…charged at me yelling” then “took my belongings in the footlocker and dispersed all over the squad bay…” d. March 1982 when “a black D.I…look at my rifle with a little rust he got so mad and snatch my rifle and with both hand on it swing it at me toward my face (I thought it will kill me) in fraction of seconds he released the assault and the momentum he deviated the hit toward my left foot hitting my boot miraculously missing my toes…it made a permanent dent and mark on my boot.” e. in 1983 while attached to when a “Marine doing mess hall duty as my helper – for some reason not known he grab a chef knife and stared swing at me yelling things…I felt terrified knowing he was going to kill me but I keep working and nothing happen.” f. in 1985 when in the galley “giving a hand to a friend cook the NCO in charge a black Sgt behind me swing at me with a giant cooking paddle…” (5) Petitioner contends a “direct causal tie” exists between the discrimination he experienced and his subsequent misconduct. “Education, language, culture, poverty, and bias triggered the young Marine into undeniable mistakes more than 35 years ago.” (6) Post-service, Petitioner explains he returned home with clear symptoms of Post- Traumatic Stress Disorder (PTSD) to an “added challenge of surviving in a tough economy with his discharge.” He further contends he was a “successful business owner for over 25 years” but recent Hurricane devastated his business. He also shares that he has had a “happy, stable marriage for over 20 years” which has resulted in two grown daughters and a son and a “paid off” home. He states he is a “good citizen that gives back to the community and enjoys the respect of his family and community.” (7) In addition to battling glaucoma which is so severe that he is considered legally blind, Petitioner contends he suffers from PTSD. He provides supporting documentation from medical professionals, in addition to the Department of Veterans Affairs (VA), confirming the diagnosis, confirming the “harsh, biased treatment he endured while in the Marines” was the “trigger,” and detailing his therapy and progress. In addition to the medical proof, he provides “observations of Puerto Rican professionals” supporting the contention that “prejudice clearly exists, and it can cause PTSD” and “family proof” of PTSD in the form of written testimony from family members. Petitioner also provides a “state-of the-art polygraph,” corroborating statements from those who “knew him before he entered the Corps and after he returned to civilian life, “drug prescription proof,” and a “study suggesting that – when a father had depression or PTSD, the child is more vulnerable to the disorder.” (8) Petitioner’s counsel contends “precedents strongly benefit” Petitioner and provided the following factors to consider: (a) Correction boards have granted meaningful relief. (b) VA rules and standards are persuasive authority. (c) All military services officially condemn bias of the sort which Petitioner encountered. (d) The Department of Defense, through references (b) through (d), “has indicated the sort of applicant deserving clemency” and “without a doubt” Petitioner “qualifies.” Petitioner lays out the following factors/items from reference (d) which “justify a discharge upgrade”: a. Reliable sources of evidence, to include documented findings from the VA and civilian health caregivers that “prove” Petitioner “suffered life-limiting PTSD” and “it was triggered by in-service physical assault, bigotry, and bias.” Additionally, he provides polygraph results verifying he was “pressured into accepting” the discharge by his Marine defense attorney and “he never suffered from PTSD prior to entering the Marine Corps…was harassed due to his Puerto Rican background…was subject to physical abuse by drill instructors and other Marines.” b. Diagnosed by licensed medical experts. c. VA determination is corroborated by three civilian physicians. d. Petitioner’s misconduct and discharge are evidence of PTSD. e. Diagnosed by licensed psychiatrists/psychologists. f. Petitioner’s undiagnosed PTSD mitigates his marijuana use. Specifically, “Congress and the DOD are amending their views on marijuana in relationship to veterans with PTSD” and “current policy is far more progressive to veterans with PTSD.” g. Petitioner experienced “negative changes in life.” h. Petitioner’s mental health has “deteriorated as a direct result of his in- service PTSD.” i. Numerous family witnesses “address how military degraded life for this former Marine.” j. “Under oath, Petitioner cites numerous examples of his post-traumatic stress should mitigate his undesirable discharge.” k. Petitioner “presents an extremely persuasive case” and the “level of proof required: ‘liberal’.” l. The “four typical questions” favor relief: i. “Petitioner’s undiagnosed PTSD mitigates his marijuana use. ii. His PTSD did not exist until in-service physical assaults, reprisals. iii. Considering all facts and circumstances, applicant’s UOTHC is too harsh. iv. His overall record argues against the worst possible discharge, particularly given his earlier honorable discharge and laudable adult good citizenship.” m. Petitioner’s marijuana use was “self-medicating while depressed after at least six physical assaults and a general officer’s condescending comments on Petitioner’s English. Clearly, these are extenuating.” n. Petitioner was not diagnosed while in the Marine Corps. o. Petitioner suffered from “service-related ailments.” p. Marijuana use triggered by PTSD. He would likely “have fared better under today’s more progressive policy governing those enduring service- related PTSD.” q. Efforts to self-medicate can be mitigating. r. Circumstances may require relaxation of the normal rules of evidence. s. An honorable discharge does not require flawless military service. k. In Petitioner’s application and rebuttal to the Advisory Opinion (AO), Petitioner submitted: (1) Navy Secretary Mabus – new rules for PTSD/upgrading discharges under 38 USC Directive on PTSD (2) History: bias against Puerto Ricans (3) Article – honoring Latino warriors (4) Opinion of psychologist: PTSD confirmed (5) Opinion of MD: PTSD confirmed (6) Opinion of MD: PTSD and ADD confirmed (7) Testimony of family members (8) VA confirmation – acute PTSD; therapy; progress notes (9) PTSD checklist (10) “Go home and await orders” analysis (11) bombing – loss of Marine lives (12) VA precedents and guidance (13) Updated USMC policy – discrimination impermissible (14) Analysis: Sociology and Puerto Ricans (15) The Goldwater issue – “long distance analysis” (16) Positive polygraph results (17) Vulnerability to PTSD if father also had the syndrome (18) Current medications (19) Bus ticket to (20) Recent episode/hospitalization confirming PTSD (21) “Family album” pictures (22) PTSD VA certificate by psychologist (23) Robert Woods before the Military Personnel Subcommittee (24) Specific board precedents (25) “Links between racism and PTSD” (26) Manker v. Spencer (27) VA rating dated 18 October 2019 l. As part of the Board’s review, a Navy mental health provider reviewed Petitioner’s assertions and available records and provided an Advisory Opinion (AO) dated 19 July 2019. The AO determined there was “insufficient evidence that all of his misconduct should be attributed to his diagnosis.” Specifically, Petitioner’s statement cites traumatic experiences incurred beginning with boot camp. However, the AO points out that Petitioner served for more than two years before his first incident of marijuana use and states that he “only used marijuana the two times that he had a positive urinalysis results.” The AO concluded that it is “less likely that self-medication for emerging PTSD symptoms would result in only two uses, which raises questions regarding the reliability of the Petitioner’s report.” Based on the available evidence, the AO author determined there was “insufficient information to attribute his misconduct to his diagnosed PTSD.” The AO was provided to Petitioner on 22 July 2019. See enclosure (6). m. On 20 August 2019, Petitioner submitted a rebuttal to the unfavorable AO. Petitioner contends the following (enclosure (7)): (1) The anonymity of the AO author makes Petitioner unable to determine “whether the author can adequately evaluate the situation” and whether “the AO is reliable.” (2) The AO sights at least five mental health experts who examined Petitioner and confirmed his diagnosed PTSD was directly triggered by his military service and “ignores the fact that current progress notes and treatment clearly indicate a clear-cut nexus between the Marine Corps stresses from a less progressive era and Petitioner’s resulting PTSD.” (3) The AO’s “logic is flawed” and “advances the incongruous notion that because Petitioner did not frequently use marijuana, his PTSD must be discounted.” (4) The AO fails to recognize Petitioner is currently being treated. (5) The AO is based on “outdated data and not the current standard.” (6) Several correction board decisions have granted relief on similar fact patterns. (7) The Harvard University article demonstrates the link between racism and PTSD. (8) Statistics show the Board “is allegedly ignoring the Hagel memo injunction of liberal consideration guidance implemented by the Kurta memo.” (9) Puerto Rican war veterans endure special challenges regarding PTSD. n. On 26 October 2019, Petitioner submitted the 18 October 2019 VA Decision which granted service connection. See enclosure (8). o. A second navy mental health provider reconsidered the original AO and considered the rebuttal evidence presented by Petitioner and provided an AO dated 31 December 2019. The AO determined the evidence “more likely than not supports the majority of Petitioner’s misconduct as attributable to his PTSD, with the exception of his ten-day period of unauthorized absence…” Based on the preponderance of the evidence, it was the AO author’s opinion that there was “sufficient evidence to attribute the majority of his misconduct to his established diagnosis of PTSD incurred during his military service.” See enclosure (9). BOARD CONCLUSION The Board, in its review of Petitioner’s entire record and application, carefully weighed all potentially mitigating factors and determined that Petitioner’s request did not warrant relief. The Board carefully considered each of Petitioner’s contentions as listed above and the documentation submitted in support of each contention. The Board concurred there was sufficient evidence to support Petitioner’s PTSD diagnosis. However, the Board, applying liberal consideration, determined there was not a clear nexus between the drug abuse misconduct and Petitioner’s diagnosed PTSD. Specifically, the Board concluded the evidence did not support Petitioner’s contention that he used marijuana to mask his PTSD symptoms. The Board noted the racism and hazing, which Petitioner contends “triggered” his PTSD, and all but one of the physical assaults, occurred in boot camp and/or during his first enlistment. The Board concluded the evidence did not support Petitioner’s contention that his PTSD resulted in him “experimenting with marijuana.” Specifically the first “masking” drug use in September 1984, more than a year after boot camp and almost a year from the most recent physical assault, was “at a party” where he contends he “got drunk and did smoke marijuana.” The Board considered Petitioner’s contention that his acceptance of an OTH discharge and waiver of an administrative discharge board and last chance to explain “the horrible condition and bad experiences” was “induced by my appointed military lawyer.” The Board determined the evidence presented did not overcome the government’s presumption of regularity in the conduct of Petitioner’s administrative discharge. Additionally, the Board considered Petitioner’s rebuttal statement which contends “several corrections board decisions have granted relief on similar fact patterns.” The Board noted it is not bound by prior Board decisions and further noted it liberally applied the guidance and requirements of references (b) through (d) and determined, based on the facts as presented by Petitioner and as contained in the record, but the record did not support an upgrade to Petitioner’s characterization of service. Lastly, the Board considered Petitioner’s post service materials and considered all guidelines of reference (e), however, did not conclude that an upgrade on the basis of clemency was warranted. In view of the above, the Board directs the following corrective action. BOARD RECOMMENDATION Deny relief. EXECUTIVE DIRECTOR’S CONCLUSION Notwithstanding the Board’s conclusion, I believe to the contrary, the Petitioner’s factors weigh heavily in favor of granting the Petitioner relief. Petitioner has had an OTH in his record for 34 years for non-violent misconduct. My review of Petitioner’s entire record and application, and carefully considering the policy guidance of references (b) through (e), Petitioner’s statement and materials supporting his request for an upgrade, and the positive contributions he has made since his discharge merits corrective action to reflect an upgrade to a general characterization of service. EXECUTIVE DIRECTOR RECOMMENDATION That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty to show he was discharged with a general (under honorable conditions) characterization of service. 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 10 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. The foregoing action of the Board is submitted for your review and action. 9/23/2020 Executive Director Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Executive Director Recommendation (Grant Relief) 10/25/2020 Assistant General Counsel (M&RA) Signed by: