Docket No: 8512-19 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) 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 (NR20190008512) (2) Case summary (3) Advisory Opinion dtd 4 Dec 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 an honorable characterization of service and to have dates of time lost corrected. Enclosures (2) to (3), and references (b) to (e) apply. 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 June 2002. Petitioner participated in combat operations as follows: ) and and ). d. Petitioner received nonjudicial punishment (NJP) on 22 March 2005 for two specifications of failure to go at the time prescribed. Petitioner received a second NJP on 3 November 2005, for absence without leave from 12 September 2005 until 21 September 2005, and false official statement. e. On 25 July 2006, Petitioner was found guilty at a special-court martial for unauthorized absence from 18 May 2006 until 23 May 2006, and four specifications of wrongful use of a controlled substance (marijuana). Petitioner was sentenced to confinement for 90 days, a bad conduct discharge, and reduction in rank to E-1. f. On 4 May 2007, the Navy and Marine Corps Appellate Leave Activity affirmed the sentence and ordered the bad conduct discharge to be executed. g. Petitioner was discharged from the Marine Corps on 6 November 2007 on the basis of his SPCM conviction, and received a bad conduct discharge and a reentry code of RE-4B. Petitioner’s overall trait average was 4.1/4.1. h. Following his discharge, Petitioner sought an upgrade to his discharge characterization from the Naval Discharge Review Board (NDRB). On 23 November 2016, NDRB determined that Petitioner’s discharge was proper as issued and no change was warranted. Following a second review of Petitioner’s record on 13 June 2019, NDRB voted 5-0 to upgrade Petitioner’s discharge to a general under honorable conditions characterization of service. On 5 September 2019, the Secretarial Review Authority, however, determined that an upgrade was not warranted and that Petitioner’s discharge would remain a bad conduct discharge, even in consideration of Petitioner’s contention he suffered from PTSD resulting from two combat deployments. i. In his application to the Board, Petitioner requests a change to his bad conduct discharge to an honorable, general, or uncharacterized discharge, and a change to his narrative reason for separation. Petitioner also contends that his Certificate of Release or Discharge from Active Duty (DD Form 214) contains an error due to periods of time lost from 27 July 2006 through 29 January 2007. Petitioner asserts that he was on involuntary appellate leave during this period but the proper documentation was not completed by the Marine Corps until he was arrested. j. Petitioner contends that he believes the SPCM conviction was overruled by the Appellate Division, and that his military counsel failed to informed the court during the SPCM proceedings that Petitioner was diagnosed with in-service PTSD after two deployments to Iraq which resulted in his self-medication with marijuana. Petitioner provided medical documentation in support of his mental health diagnoses. k. As part of the review process, a licensed clinical psychologist reviewed Petitioner’s available records and issued an AO that noted that Petitioner’s in-service records contain direct evidence of a mental health issue/concern, as well as psychological/behavioral changes, which indicated he was suffering from a mental health condition. The AO determined that Petitioner’s documented mental health symptoms/diagnoses, while he was active duty, are sufficiently detailed to lend credibility to his contention that his PTSD was a contributing factor in his misconduct. The AO concluded that Petitioner suffered from PTSD connected to his military service and that his in-service misconduct could be attributed to PTSD. 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 Petitioner’s misconduct is mitigated by his service-connected PTSD due to his combat deployments to Iraq. The Board found that although Petitioner’s misconduct is mitigated by his service connected mental health issues, he is not completely absolved from responsibility for his actions. The Board noted that Petitioner was receiving treatment for his PTSD while he was in the Marine Corps, but nonetheless committed misconduct. The Board considered that the AO remarked that it is not uncommon for individuals with a mental health diagnosis to continue to present with symptoms while participating in treatment. The Board found that Petitioner’s discharge should be upgraded to reflect a general discharge vice an honorable due to Petitioner’s misconduct being committed both pre and post diagnosis. The Board also determined that in consideration of his service-connected PTSD, Petitioner is entitled to a change to his narrative separation reason to reflect “Secretarial Authority,” and corresponding SPD code and separation authority. The Board found, however, that Petitioner’s DD Form 214 should not be changed to remove time lost for the period of absence following his special court martial conviction. Even in consideration of Petitioner’s contention that he was on appellate leave and noting Petitioner’s 25 July 2006 request to be placed on voluntary appellate leave, the Board determined that Petitioner’s request was not approved before 27 July 2006. The Board found that based on the Commanding General, Marine Corps Combat Development Command’s 8 February 2007 letter, Petitioner was not ordered to appellate leave until 8 February 2007. Accordingly, the Board concluded that the time lost reflected on Petitioner’s DD Form 214 does not warrant a change. In view of the above, the Board directs the following corrective action. RECOMMENDATION That Petitioner’s naval record be corrected to show that on 6 November 2007, he was issued a general under honorable conditions discharge by reason of “Secretarial Authority,” that his SPD code is “JFF1,” and his separation authority is “MARCORSEPMAN PARA 6421.” That Petitioner be issued a new DD Form 214. 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.