Docket No: 7029-19 Ref: Signature Date 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 of 3 Sep 14, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” (c) PDUSD memo of 24 Feb 16, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) PDUSD memo of 25 Aug 17, “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” (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 (NR20190007029) (2) BCNR, Advisory Opinion 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to reflect an upgrade to his discharge characterization as Honorable or in the alternative, General Under Honorable Conditions and a change to his narrative reason for separation to Secretarial Authority. Enclosures (1) and (2) and references (a) through (e) apply. 2. The Board reviewed Petitioner's allegations of error and injustice on 9 November 2020, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Petitioner’s allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of his naval record, and applicable statutes, regulations, and policies, to include the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). 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, the statute of limitation was waived in accordance with the Kurta Memo. 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 7 November 2005. Petitioner deployed to in January 2007, where he participated in numerous missions outside the wire and was assigned to a “.” On 13 March 2007, Petitioner’s squad participated in combat operations during Operation . During a canal crossing, a fellow squad member lost his life. Petitioner’s first deployment to I also coincided with a period of loss of 329 servicemembers from 1 April 2007 to 30 June 2007. d. On 18 December 2007, Petitioner completed a Post Deployment Health Reassessment upon return from his deployment and reported symptoms of Post Traumatic Stress Disorder (PTSD). e. Petitioner was deployed to Iraq a second time from April 2008 to November 2008. Petitioner was stationed in the same area as his first deployment and his symptoms were exacerbated. f. On 14 September 2008, Petitioner received nonjudicial punishment (NJP) for violating the Uniform Code of Military Justice, Article 91 (did show contempt toward a Platoon Sergeant by turning his back and walking away while being counseled for violating uniform regulations and did show contempt by shouting obscenities while being verbally counseled), and Article 92 (wearing unauthorized headband while on security duty at the Council Center). g. On 22 September 2008, Petitioner again reported symptoms of PTSD on his second Post Deployment Health Reassessment. He noted nightmares, emotional problems, avoidance, being constantly on guard, and being easily startled. Petitioner asked to see a counselor and a chaplain. h. In November 2008, Petitioner tested positive for amphetamines. On 29 January 2009, Petitioner was diagnosed with Major Depressive Disorder and PTSD. i. On 29 April 2009, Petitioner was found guilty at summary court martial for three specifications of disrespect and failing to remain at his appointed place of duty. j. On 8 June 2009, Petitioner was notified that administrative separation proceedings were being initiated against him; Petitioner waived his right to appear before an administrative separation board. k. On 15 June 2009, Commanding Officer, recommended that Petitioner be separated on the basis of a pattern of misconduct and drug abuse. l. On 5 August 2009, Petitioner was found guilty at summary court martial for violating Article 112a (wrongful use of cocaine) and Article 86 (absence from appointed place of duty from 28 July to 3 August 2009). m. Petitioner was confined on 5 August 2009, pursuant to the sentence of the summary court martial. On 3 September 2009, Petitioner again waived his right to appear before an administrative separation board. On 6 November 2009, Petitioner was separated on the basis of misconduct and received an other than honorable discharge and a reentry (RE) code of RE-4. n. In his application to the Board, Petitioner, through counsel, requests an upgrade to his discharge characterization and a change to his narrative reason for separation. Petitioner states that the current other than honorable discharge with the current narrative reason for separation is unjust as the separation proceedings which lead to the discharge did not consider substantial factors in mitigation related to PTSD and Major Depressive Disorder. Petitioner provides a brief in support of his request which includes a personal statement, statements of support, and documented diagnoses of PTSD, Major Depressive Disorder, and Anxiety. o. As part of the review process, a Licensed Clinical Psychologist reviewed Petitioner’s request, and issued an Advisory Opinion. The Advisory Opinion concluded that there is sufficient direct evidence that Petitioner exhibited behaviors associated with PTSD during his military service and that his misconduct may be mitigated by his mental health disorder. CONCLUSION The Board determined that liberal consideration should be applied to Petitioner’s request. The Board noted Petitioner’s significant combat experience in , his reporting of mental health concerns during his Post Deployment Health Reassessments, the nature of his misconduct, and his post-discharge medical treatment records. The Board concurred with the Advisory Opinion and concluded that Petitioner’s misconduct is mitigated by his in-service mental health issues. The Board determined that Petitioner is entitled to full relief, to include an upgrade to his discharge to reflect an honorable characterization of service, and a change to his narrative reason of separation to reflect “Secretarial Authority,” with corresponding changes to his separation code and his separation authority. RECOMMENDATION: Petitioner be issued a new DD Form 214 to indicate that on 6 November 2009, Petitioner was issued an honorable discharge by reason of “Secretarial Authority,” that his separation code is “JFF1,” his separation authority is “MARCORSEPMAN PAR 6421,” and his RE code is RE-1J. That Petitioner be issued an honorable discharge certificate. That no further corrective action is warranted. That a copy of this report of proceedings be filed in 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. 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 Regulation, 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.