DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8266-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b)SECDEF Memo, “Supplemental Guidance to MilitaryBoards 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) USD 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, “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) Standard Form 600, dtd 25 Jan 94 (3) NAVMC 118 (12), Offenses and Punishments, dtd 14 Feb 94 (4) NAVMC 118 (12), Offenses and Punishments, dtd 3 Mar 94 (5) NAVMC 118 (11), Administrative Remarks, dtd 4 Mar 94 (6) NAVMC 118 (12), Offenses and Punishments, dtd 5 Jul 94 (7) Marine Corps subj: Notification of Separation Proceedings, of 7 Oct 94 (8) Marine Corps subj: Administrative Discharge Board in the case of [Petitioner], of 12 Dec 94 (9) Marine Corps subj: Administrative Discharge Board in the case of [Petitioner], of 17 Jan 95 (10) DD Form 214 (11) NGB Form 22, Report of Separation and Record of Service (IANG) (12)NGB Form 22, Report of Separation and Record of Service (MAARNG) (13) Initial PTSD Disability Benefits Questionnaire, dtd 9 Feb 18 (14)Department of Veterans Affairs Rating Decision, dtd 23 Feb 18 (15) Advisory Opinion, of 30 Nov 2020 (16) People v. , 33 Cal.App.5th 1126 (Cal.Ct.App. 2019), 4 Apr 2019 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 characterization of service be upgraded to honorable. 2. The Board reviewed Petitioner’s allegations of error and injustice on 29 January 2021 and pursuant to its regulations, determined the corrective action indicated below should be taken. As discussed below, I disagree with the Board’s conclusions and believe that relief is not warranted under the totality of the circumstances. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) – (e). 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 review Petitioner’s application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 12 April 1993. See enclosure (12). d. In November 1993, Petitioner witnessed a truck full of teenagers drive through the freeway railings, off of an overpass, and fall to the surface street below. Petitioner states that most of the passengers died, and all were injured with horrific injuries, and that he called 9-1-1 and helped first responders on the scene for hours thereafer. e. On 25 January 1994, Petitioner was diagnosed with post-traumatic stress disorder (PTSD) and schizotypal traits by a provider in the Naval Hospital Mental Health department, but was determined to be psyciatricaly fit, suitable for full duty, and responsible for his behavior. The mental health evaluation noted that Petitioner may be dissociating intermittently, but demonstrated no basic loss of realty testing. Petitioner claims and it is presumed that the above referenced vehicular accident was the traumatic event that triggered his PTSD symptoms. See enclosure (2). f. On 14 February 1994, Petitioner received nonjudicial punishment (NJP) for failing to go to his appointed place of duty on two occasions in violation of Article 86, Uniform Code of Military Justice (UCMJ); disobeying the lawful order of a superior noncommissioned officer in violation of Article 92, UCMJ; and making false statements by stating that a noncommissioned officer physically abused him in violation of Article 134, UCMJ. See enclosure (3). g. On 3 March 1994, Petitioner received a second NJP for a short unauthorized absence (UA) in violation of Article 86, UCMJ. See enclosure (4). h. On 4 March 1994, Petitioner was counseled regarding his “[f]ailure to conform to [a] military lifestyle, UCMJ, and frequent involvement with military authority.” He was advised that failure to take corrective action may result in administrative separation or judicial proceedings. See enclosure (5). i. On 14 March 1994, Petitioner was counseled for displaying “poor Judgement [sic] and immaturity resulting in reportingfive hours late to gaining unit while executing PCS orders.” See enclosure (5). j. Petitioner particpated in Operation in Kuwait during April 1994. See enclosure (5). According to U.S. Marine Corps Uniterist, training exercise from 4-25 April 1994 designed to demonstrate U.S. commitment to stability in the region while conducting maritime prepositioning force operations and combined training.1 k. In a final follow-up mental health appointment, Petitioner’s previously diagnosed PTSD condition was listed as improved, and his final discharge diagnoses were Adjustment Disorder with Depressed Mood (improved) and Personality Disorder (not otherwise specified), with borderline and schizotypal features. l.On 5 July 1994, Petitioner received a third NJP for a period of UA in violation of Article 86, UCMJ, and five specifications of writing bad checks in violation of Article 134, UCMJ. See enclosure (6). m. On 25 August 1994, Petitioner was counseled regarding his “[f]ailure to conform to military lifestyle[,] continued poor performance, [and] frequent involvement with military authorities.” He was again warned that any further deficiencies in his performance and/or conduct may result in disciplinary action and/or processing for administrative discharge. See enclosure (5). n. On 18 October 1994, Petitioner received a fourth NJP for writing a bad check in violation of Article 134, UCMJ. See enclosure (6). o. By memorandum dated 7 October 1994, Petitioner was notified that he was being processed for administrative discharge based upon a pattern of misconduct. See enclosure (7). p. On 17 November 1994, an administrative discharge board found sufficient evidence to support a pattern of misconduct and that separation was warranted in Petitioner’s case. The ADB recommended that Petitioner be separated under other than honorable (OTH) conditions. See enclosure (8). q. By memorandum dated 30 January 1995, the separation authority approved the recommendation of the ADB and directed that Petitioner be separated under OTH conditions. See enclosure (9). 1 See https://www.usmcu.edu/Research//Marine-Corps-History-Division/Research-Tools-Facts-and­Figures/Chronologies-of-the-Marine-Corps/1994/ r. On 17 February 1995, Petitioner was discharged from the Marine Corps under OTH conditions for a pattern of misconduct. He was assigned an “RE-4”reentry code. See enclosure (10). s. On 29 August 1997, Petitioner was enlisted in the. He was subsequently deischarged from the on 2 May 1998 with a general (under honorable conditions) charaterization of service due to unsatifactory participation, and was transferred thewas subsequently discharged from the on 2 May 1998 with a general (under honorable conditions) characterization of service due to unsatisfactory participation, and was transferred to the U.S. Army Reserve Control Group. He was assigned an “RE-3” reenlistment code.2 See enclosure (11). t. On 24 May 2000, Petitioner enlisted in the He was honorably discharged from the upon completion of his service obligation on 23 May 2001. See enclosure (12). u. On 9 February 2018, a Department of Veterans Affairs initial screening diagnosed Petitioner with Adjustment Disorder with anxiety due to his witness of the aforementioned vehicle accident and other legal stressors. This screening found that Petitioner’s symptoms did not meet the diagnostic criteria for PTSD. See enclosure (13). On 23 February 2018, Petitioner was granted service connection for treatment purposes only for adjustment disorder with anxiety (claimed as PTSD). See enclosure (14). v. Petitioner asserts that his OTH characterization of service is unjust because his PTSD condition was not taken into consideration, citing to reference (d) in support of this claim. He specifically explains how his PTSD symptoms excused the misconduct for which he received NJP, describing the dissociation symptoms that contributed to some of his UAs and attributing the bad checks that he wrote to certain of his PTSD symptoms. Petitioner contends that if he had been treated for PTSD instead of being immediately sent back to work and subsequently to Kuwait three months later for Exercise Native Fury, he would have improved and might not have been discharged. Petitioner also noted that he was subsequently permitted to enlist in both the IANG and MAARNG, which suggests that his OTH characterization of service from the Marine Corps was unjust and provides strong mitigating evidence for consideration. w. Based on Petitioner’s contention that he suffered from PTSD symptoms, his application and records were reviewed by a qualified mental health provider who provided an advisory opinion (AO) for the Board’s consideration. TheAO found direct evidence in Petitioner’s in-service records of a PTSD diagnosis related to his witnessing of a motor vehicle crash, which later evolved into Adjustment Disorder as his PTSD symptoms improved and his stressors became more focused on disciplinary, family, and administrative stressors. It also noted that the nature of Petitioner’s PTSD symptoms followingthe triggering traumatic event reflected the nature of the misconduct cited in his four NJPs. Accordingly, the AO found that there is sufficient objective evidence that Petitioner exhibited behaviors associated with PTSD during his military service and that his misconduct may be mitigated by his PTSD condition. See enclosure (15). 2 An RE-3 reenlistment code in the Army indicates that the individual is illegible for enlistment unless a waiver is granted. MAJORITY CONCLUSION: Upon careful review and consideration of all of the evidence of record, the Majority of the Board determined that Petitioner’s characterization of service should be upgraded in the interests of justice. Based upon Petitioner’s claim of PTSD, the Majority of theBoard reviewed Petitioner’s application in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s claimed mental health condition and the effect that it may have had upon his conduct. In this regard, the Majority substantially agreed with the AO that there is sufficient evidence that Petitioner suffered PTSD symptoms during his military service, and that his misconduct may be mitigated by his mental health condition. In addition to applying liberal consideration to Petitioner’s PTSD condition and the effect that it may have had upon his conduct, the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Majority considered, among other factors, Petitioner’s PTSD condition and the mitigating effect that it had upon Petitioner’s conduct; Petitioner’s military service, to include his honorable discharge from the latter; Petitioner’s assertion that personal and financial problems impaired his ability to serve; that Petitioner has been diagnosed with a service connected Adjustment Disorder; Petitioner’s post-service employment record as reflected in the resume that he provided; Petitioner’s extensive rehabilitation efforts while incarcerated, to include his active and successful participation in numerous vocational, educational, and behavioral rehabilitation programs; the numerous letters of support provided by Petitioner attesting to his character and potential positive contributions to society; Petitioner’s relative youth at the time of his misconduct; and the passage of time since Petitioner’s discharge. Based upon this review, the Majority determined that an upgrade of Petitioner’s characterization of service to general (under honorable conditions) was warranted under the totality of the circumstances. The Majority considered whether to upgrade Petitioner’s characterization of service to fully honorable, but determined that such relief was not warranted under the totality of the circumstances given Petitioner’s repeated misconduct. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval service record: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions); That no other changes be made to Petitioner’s record; That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: The Minority of the Board also applied liberal consideration to Petitioner’s PTSD condition and the impact that it may have had upon his conduct in accordance with references (b) – (d), and considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). Based upon this review, the Minority agreed with the Majority and the AO that Petitioner’s misconduct was mitigated by his PTSD condition, and that the totality of the circumstances warranted some relief. The Minority also agreed with the Majority that an upgrade to general (under honorable conditions), rather than to fully honorable, was warranted based upon the quantityof Petitioner’s misconduct. However, the Minority did not believe that the Majority recommendation went far enough to serve the interests of justice. Specifically, the Minority believed that Petitioner’s narrative reason for separation, and the corresponding separation authority and separation code, should also be changed to address potential future negative implications. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that the following corrective action be taken on Petitioner’s naval service record: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “General (under honorable conditions)”; that the narrative reason for his separation was “Secretarial Authority”; that his separation authority was “MARCORSEPMAN par. 6214”; and that his separation code was “JFF1”; That no other changes be made to Petitioner’s record; That a copy of this report of proceedings be filed in Petitioner’s naval record. EXECUTIVE DIRECTOR CONCLUSION: On its face, Petitioner’s application is very impressive and it is understandable why the Board reached its conclusions above. In addition to establishing that Petitioner’s misconduct was mitigated by his PTSD condition, it also provides significant evidence of positive post-service conduct that would support relief. I concur with the findings of the Board and the AO that Petitioner’s PTSD condition mitigated the misconduct for which he was separated, and under most circumstances would agree that relief is warranted. However, based on the totality of the circumstances, I do not believe that relief is warranted in this case. The Board did not find any error in Petitioner’s OTH characterization of service. It also found, in accordance with the guidance of reference (d), that Petitioner’s PTSD mitigated, rather than excused, his misconduct. As such, the relief recommended by the Board above comes from its equitable relief authority discussed in reference (e). In accordance with paragraph 6h of reference (e), the Board properly considered the mitigating effect of Petitioner’s PTSD condition, in addition to all of the other mitigating factors discussed above in reaching its conclusion that relief was warranted under the totality of the circumstances. However, paragraph 7d of reference (e) instructs that the Board should also consider “negative post-conviction conduct, including any arrest, criminal charges, or any convictions since the incident at issue.” As the focus of reference (e) was on clemency from criminal convictions and it specifically stated that its guidance was to apply to discharge upgrades on the grounds of injustice as well as clemency from court-martial convictions, this guidance properly applies to negative post-service conduct and criminal convictions as well. On 21 November 2005, Petitioner was convicted by the Superior Court of two counts of first-degree murder along with special circumstances of multiple murders arising from the death of two Israeli nationals in 2002. These murders occurred after Petitioner and several others held the victims hostage at the house of a drug dealer and tortured them to extract confessions regarding the theft of the drug dealer’s marijuana plants. Petitioner then participated in a cover-up of the murders, using their credit cards in to create a false paper trail and then burying their bodies in the desert. Petitioner’s murder convictions were reversed on 11 September 2007 due to an instructional error at trial regarding the special circumstances of the murders, but he was subsequently retried and convicted of one count each of second degree murder and involuntary manslaughter, and sentenced to 19 years to life in confinement. This conviction was upheld by the Court of Appeals on 4 December 2019. See enclosure (16). While the Board was aware from the contents of Petitioner’s application that he was serving an extended sentence to confinement, it is not clear that it knew the details of the offense for which Petitioner was incarcerated when it recommended relief. A review of the facts of Petitioner’s conviction in enclosure (16) reveals violent and depraved criminal conduct, as well as deliberate plan to hide evidence and avoid discovery of the crime and ongoing deceit to thwart investigative efforts. As impressive as Petitioner’s post-service record may appear, it pales in comparison to the character revelations that come from enclosure (16). Any consideration of the totality of the circumstances must include this conduct, and in my opinion it leaves the Petitioner far short of being worthy of the Board’s equitable relief authority. EXECUTIVE DIRECTOR RECOMMENDATION: In view of the above, I recommend that no change be made to Petitioner’s naval service 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. 2/24/2021 ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: Executive Director Recommendation Approved (Deny Relief)