Docket No: 8545-19 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, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (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 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 (Kurta Memo) (e) USECDEF 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 (Wilkie Memo) Encl: (1) DD Form 149 with attachments (2) Case summary 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Corrections of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and make other conforming changes to his DD Form 214. 2. The Board, consisting of 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) (collectively, “Clemency Memos”). 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 review the application on its merits. c. The Petitioner enlisted in the Marine Corps and began a period of active service on 12 June 1996. Petitioner’s pre-enlistment physical and medical history noted no psychological or neurological abnormalities, conditions, or symptoms. d. On 14 February 1997 Petitioner received non-judicial punishment (NJP) for the theft of a candy bar valued at fifty cents. On 6 May 1997 Petitioner received NJP for the theft of gas from the base gas station valued at $15.87 and for negligently damaging government property. On 22 May 1997 Petitioner received a “Page 11” counseling warning informing him that a failure to take corrective action may result in administrative separation processing. However, on 18 November 1997 Petitioner received NJP for failing to go to his appointed place of duty and making a false official statement regarding the location of his uniforms. e. On 29 December 1997, the Petitioner was notified that he was being processed for an administrative discharge by reason of minor disciplinary infractions. The Petitioner waived his right to submit a written statement to the separation authority for consideration, and to request an administrative board. The separation authority approved and directed Petitioner’s discharge for a pattern of misconduct with an other than honorable (OTH) characterization of service. Ultimately, on 20 March 1998, the Petitioner was discharged from the Marine Corps with an OTH characterization of service for a pattern of misconduct and assigned an “RE-4” reentry code. On 21 November 2008 the Naval Discharge Review Board (NDRB) determined that Petitioner’s discharge was proper and that no change was warranted. f. In short, the Petitioner contended he had underlying issues that were not diagnosed or misdiagnosed affecting his ability to perform his duties properly at the time, and that he wasn’t given the opportunity to seek proper counsel or evaluation. The Petitioner argued that his infractions were not that serious, and that post-service he has been a productive member of society and also helps veterans throughout his state. g. As part of the review process, the BCNR Physician Advisor, who is a licensed clinical psychologist (Ph.D.), reviewed Petitioner’s contentions and the available records and issued an AO dated 9 December 2020. The Ph.D. noted that Petitioner’s post-service medical records indicated that he was diagnosed and treated in 2018 for Attention Deficit Hyperactivity Disorder and Unspecified Mood Disorder. The Ph.D. also noted that Petitioner’s in-service records do not contain direct or indirect evidence of a PTSD diagnosis or psychological/behavioral changes indicating a mental health condition. The Ph.D. concluded by opining that the preponderance of available objective evidence failed to establish Petitioner was diagnosed with PTSD, suffered from PTSD at the time of his military service, or that Petitioner’s in-service misconduct could be attributed to PTSD or other mental health conditions. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. In keeping with the letter and spirit of the Clemency Memos, the Board believed that there was an injustice in ultimately separating the Petitioner for a pattern of misconduct with an OTH characterization of service. The Board determined that justice was not achieved in this case, and that the discharge characterization was unjust and disproportionate to the offenses Petitioner committed. First and foremost, the Board concluded the Marine Corps essentially “threw the book” at Petitioner for relatively minor offenses considering the dollar amounts in question and the factual circumstances present in this case. Secondly, the Board noted that had Petitioner’s discharge characterization been based, in part, on conduct and overall trait averages computed from marks assigned during periodic evaluations, that Petitioner’s overall active duty trait average in conduct (proper military behavior) during his enlistment (3.6) exceeded the Marine Corps’ required minimum trait average in that category (3.0) for a general (under honorable conditions) (GEN) characterization of service. Thirdly, considering the severity of the discharge characterization and the lack of any identifiable aggravating circumstances, the Board was not convinced that justice was done and that the Petitioner received the discharge characterization he deserved. With that being determined, the Board concluded that the OTH discharge was severe, and that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions. Especially in light of the Wilkie Memo, the Board concluded after reviewing the record holistically and given the totality of the circumstances and purely as a matter of clemency, that flawless service is not required for a GEN discharge and is appropriate at this time. Notwithstanding the recommended corrective action below, the Board did not find a material error or injustice with the Petitioner’s reentry code or narrative reason for separation. The Board concluded the Petitioner was assigned the correct reentry code and narrative reason based on the totality of his circumstances, and that such reentry code and narrative reason were proper and in compliance with all Navy directives and policy at the time of his discharge. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “General (Under Honorable Conditions).” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. Petitioner shall be issued a new General (Under Honorable Conditions) Discharge Certificate. 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 Regulations, 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.