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, “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 on reconsideration 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 , reviewed Petitioner's allegations of error and injustice on 8 January 2021, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. 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, the Board determined that it was 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 service on 3 July 1967. Petitioner’s pre-enlistment physical and medical history both noted no psychiatric or neurological conditions or symptoms. d. On 23 April 1968 the Petitioner received non-judicial punishment (NJP) for unauthorized absence (UA). Following two lengthy UA periods lasting seventy-four and thirty-seven days, respectively, on 9 May 1969 Petitioner received NJP again for UA. On 19 February 1970, the Petitioner was convicted by civil authorities in for assault with a deadly weapon. As punishment Petitioner was placed on probation for three years and given credit for time served in pre-trial confinement. e. On 2 March 1970 the Petitioner was notified that he was being processed for an administrative discharge by reason of unfitness due to his civilian conviction. The Petitioner waived his rights to consult with counsel and to request an administrative separation board. On 2 April 1970, the Staff Judge Advocate for the separation authority determined that Petitioner’s separation was legally and factually sufficient. Ultimately, on 24 April 1970 the Petitioner was discharged from the Marine Corps for unfitness with an “under conditions other than honorable” (OTH) characterization of service and assigned an RE-4 reenlistment code. f. Based on his available service records, Petitioner’s overall conduct average assigned on his periodic performance evaluations during his enlistment was 3.15. Marine Corps regulations in place at the time of his discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. g. On 21 October 1997, the Board originally determined that no relief was warranted. The Board concluded that the evidence Petitioner submitted was insufficient to establish the existence of a probable material error or injustice. h. In short, Petitioner contended that he was suffering from service-connected post-traumatic stress disorder (PTSD) related to his service in . The Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service. i. As part of the review process, the BCNR Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO dated 11 December 2020. The MD initially noted that Petitioner’s in-service records did not contain direct evidence of diagnosed PTSD or psychological/behavioral changes that may have indicated PTSD. However, the MD opined that there was sufficient indirect evidence that Petitioner exhibited behaviors associated with PTSD as a result of his combat trauma experiences incurred during his military service and that Petitioner’s misconduct may be mitigated by his PTSD experience. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants 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 recent policy guidance, the Board felt that Petitioner’s diagnosed mental health condition mitigates the misconduct used to characterize his discharge. The Board also concluded that the Petitioner’s PTSD-related symptoms and condition as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s pattern of misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions, and that a general (under honorable conditions) (GEN) discharge under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive the Petitioner of most veterans’ benefits. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board did not believe that the Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance outweighed the positive aspects of his military record even under the liberal consideration standard for mental health conditions. The Board determined that Petitioner’s conduct/military behavior marks during his active duty career were a direct result of his misconduct. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge was appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and as a matter of clemency, that the Petitioner merits a GEN characterization of service, and that the reentry code should remain “RE-4.” 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),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6421,” and the separation code be changed to “JFF1.” 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.