DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6806-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER USMC, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) 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,” 25 August 2017 (Kurta Memo) (c)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 w/attachments (2) Advisory Opinion (AO) of 28 Oct 20 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 adjudged bad-conduct discharge (BCD) be upgraded due to a mental health condition. Although not explicitly requested, implied with this application is also a request to change the separation authority, narrative reason for separation, and separation code. 2. The Board reviewed Petitioner's allegations of error and injustice on 9 November 2020. Pursuant to its regulations, the Majority of the Board 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 the 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. Petitioner enlisted in the Navy and began a period of active duty on 13 February 1996. c. On 11 July 1996, Petitioner received nonjudicial punishment (NJP) for approximately 35 days of unauthorized absence in violation of Article 86, Uniform Code of Military Justice (UCMJ). He was counseled for this incident and warned that further misconduct could result in disciplinary action and/or processing for administrative discharge. d. On 22 August 1996, Petitioner received NJP for violating a lawful order by drinking alcoholic beverages while under the age of 21 in violation of Article 92, UCMJ, and for breaking restriction in violation of Article 134, UCMJ. e. On 24 October 1996, a special court-martial convicted Petitioner of disrespect to a superior noncommissioned officer in violation of Article 91, UCMJ; drunk and disorderly conduct inviolation of Article 134, UCMJ; violating a lawful order by traveling to violation of Article 92, UCMJ; and breaking restriction in violation of Article 134, UCMJ. He was sentenced to 108 days of confinement, forfeiture of pay, and a BCD. f. Petitioner was officially separated from the Marine Corps on 19 March 1998 with a BCD. g. In September 1997, while on appellate leave pending execution of his BCD, Petitioner was hospitalized and diagnosed with bipolar disorder. Over time, Petitioner’s bipolar disorder apparently evolved into schizoaffective disorder. Petitioner provided extensive inpatient and outpatient mental health records documenting multiple psychiatric hospitalizations. The primary symptoms included auditory and visual hallucinations, command hallucinations directing him to harm others and himself, paranoia, suicidal ideation, and depression. On 2 May 2019, the Department of Veteran’s Affairs (VA) granted Petitioner service connection for bipolar and schizoaffective disorders for treatment purposes only. Petitioner asserts that he was hearing voices in his head telling him to commit crimes and hurt people, which was the cause of his discharge from the Marine Corps. He further asserts his belief that if he had been correctly diagnosed while in the service he would have served honorably and had no further problems. h. Petitioner’s request was fully and carefully considered by the Board in light of the guidance provided by reference (b). As such, the Board applied liberal consideration to Petitioner’s assertion of in-service mental health disorders, and the affect that such conditions may have had upon his conduct. In this regard, the Board considered the AO provided by the BCNR’s Physician Advisor. Based upon his review of the Petitioner’s mental health record, the AO found sufficient evidence that Petitioner developed bipolar disorder during his military service and that his misconduct may be mitigated by his mental health condition. See enclosure (2). i. In addition to applying liberal consideration to Petitioner’s claim of mental health condition(s), the Board also considered the totality of the circumstances in accordance with the guidance provided by reference (c) to determine whether the interests of justice warrant clemency. Accordingly, the Board considered all potentially mitigating circumstances, including but not limited to Petitioner’s diagnosis and VA-granted service connection for bipolar disorder; that Petitioner’s mental health condition(s) may have mitigated the misconduct for which he was discharged; the long history of mental health issues that Petitioner has endured since his discharge; the Petitioner’s relative youth and immaturity at the time of his discharge; and the passage of time since his discharge. MAJORITY CONCLUSION: Based upon its review of the evidence of record in accordance with the guidance of references (b) and (c), the Majority concluded that clemencyis warranted in Petitioner’s case. Specifically, the Majorityfound that Petitioner’s mental health condition likely existed during his military service, and it significantly mitigated the misconduct that resulted in his BCD. Having determined that Petitioner’s misconduct was mitigated by his mental health conditions, the Majority did not find that his condition outweighed his significant misconduct to such an extent to warrant upgrade of his punitive discharge to honorable. Rather, the Majority found that the interests of justice are served by upgrading Petitioner’s characterization of service to general (under honorable conditions). The Majority also determined that the interests of justice warrant associated changes to Petitioner’s narrative reason for separation, separation code, and separation authority. MAJORITY RECOMMENDATION: In view of the foregoing, the Majority of the Board finds the existence of an injustice warranting the following corrective action: That Petitioner be issued a new DD Form 214 reflecting that Petitioner was discharged on 19 March 1998 with a general (under honorable conditions) characterization of service. That Petitioner’s separation authority be changed to “MARCORSEPMAN par 6214.” That Petitioner’s separation code be changed to “JFF1.” That Petitioner’s narrative reason for separation be changed to “Secretarial Authority.” That no further changes be made to Petitioner’s naval service record. That a copy of this report of proceedings be filed in Petitioner’s naval record. That upon request, the VA is informed that Petitioner’s application was received by the Board on 10 July 2019. MINORITY CONCLUSION: The Minority also carefully and conscientiously reviewed the evidence of record in accordance with the guidance provided by references (b) and (c). Unlike the Majority, however, the Minority found no nexus between Petitioner’s misconduct and mental health condition(s). Accordingly, the Minority found that no relief was warranted. MINORITY RECOMMENDATION: In view of the foregoing, the Minority of the Board recommends that no corrective action be taken upon Petitioner’s naval service record. 4. It is certified that 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 (Upgrade to General (Under Honorable Conditions))