Docket No: 8222-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: (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 ons” Encl: (1) DD Form 149 (NR20190008222) (2) Case summary (3) Advisory Opinion dtd 24 Nov 20 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 an upgrade to his discharge to reflect a general under honorable conditions characterization of service. Enclosures (2) applies. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 11 January 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s 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). Additionally, the Board also considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to Petitioner. Although Petitioner was afforded an opportunity to submit a rebuttal, Petitioner did not do so. 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 waive the statute of limitations and review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 25 October 1989. Petitioner participated in Operation Desert Storm between 22 January 1991 and 12 March 1991. d. In 1992, Petitioner was counseled concerning poor judgment, stemming from his apprehension at for shoplifting. On 15 July 1992, Petitioner received nonjudicial punishment (NJP) for a period of unauthorized absence (UA), disrespect toward a corporal, and failure to obey a lawful order. e. On 11 September 1992, Petitioner received NJP for a period of UA, wearing gold earrings, and making a false official statement. On 25 January 1993, Petitioner was again counseled for poor judgment following his arrest for shoplifting in the local community. f. On 1 February 1993, the Commanding Officer, Headquarters and Headquarters Squadron notified Petitioner of administrative separation proceedings being initiated against him on the basis of misconduct due to minor disciplinary infractions and a civilian conviction. g. On 9 February 1993, Petitioner received a third NJP for a period of UA. h. On 23 March 1993, Petitioner waived his right to appear before an administrative separation board. i. On 3 May 1993, Petitioner was discharged from the Marine Corps on the basis of Misconduct-Minor Disciplinary Infractions, and received an other than honorable characterization of service and a reentry (RE) code of RE-4. j. In his application for correction, Petitioner asks for an upgrade to his characterization of service to general under honorable conditions. Petitioner states that he believes he was suffering from PTSD incurred during his service in support of the liberation of Kuwait during Operation Desert Storm/Dessert Shield. He provides a personal statement in which he recalls that he was a young promising Marine, but after he returned from Desert Storm/Desert Shield, he was not the same, that something had gone wrong. He asserts that without the proper diagnosis, he felt lost and abandoned. He states that he suffered from anxiety, and was filled with fear and rage with no outlet. k. As part of the review process, a licensed clinical psychologist reviewed Petitioner’s available records and issued an AO that noted Petitioner’s in-service records do not contain direct evidence of a diagnosis of PTSD or psychological/behavioral changes which may have indicated any mental health condition. The AO found that there is no evidence to support the claim that Petitioner was suffering from undiagnosed PTSD. The AO concluded that the preponderance of available evidence fails to establish that Petitioner was diagnosed with PTSD, suffered from PTSD at the time of his military service or that his in-service misconduct could be attributed to PTSD or other mental health condition. l. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in Petitioner’s case in accordance with the Kurta Memo, the Hagel Memo, and the Wilkie Memo. These included, but were not limited to, Petitioner’s challenging personal circumstances, his statement that he sought help from the chaplain and a civilian psychologist, and his post-service accomplishments as reflected in his application. CONCLUSION The Board reviewed Petitioner’s application, the available service record, and the AO. The Board concurred substantially with the findings of the AO and determined that the available evidence does not establish that Petitioner was suffering from a mental health condition at the time of his military service which would mitigate his misconduct. The Board did consider that Petitioner’s record establishes that he served in support of Operation Desert Storm, but found that his overseas deployment absent medical evidence confirming a mental health diagnosis was insufficient to support a finding that he suffered from PTSD due to his participation in support of operations during Desert Storm/Desert Shield. However, the Board found that as a matter of clemency, Petitioner is entitled to an upgrade to a general under honorable conditions characterization of service. The Board based its decision on Petitioner’s personal statement regarding his challenges following his deployment, the fact that his misconduct occurred after his time overseas, the relatively minor nature of the misconduct reflected in Petitioner’s service record, and Petitioner’s post-service accomplishments. In view of the above, the Board directs the following corrective action. RECOMMENDATION That Petitioner’s naval record be corrected to show that on 3 May 1993, he was discharged from the Marine Corps and received a general under honorable conditions characterization of service. That Petitioner be issued a new DD Form 214. That a copy of this report of proceedings be filed in Petitioner’s naval record. That no further action be granted. 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.