Docket No: 9072-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER XXX XX USMC 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 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) PDUSD 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) 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 Encl: (1) DD Form 149 with attachments (2) Case summary (3) Advisory Opinion, Docket No: NR20190009072 of 9 Dec 2020 (4) Rebuttal to the Advisory Opinion dtd 30 Dec 2020 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 naval record be corrected to reflect an upgraded character of service and changes to his narrative reason for separation and reentry code on his Certificate of Release or Discharge from Active Duty (DD Form 214). 2. The Board consisting of reviewed Petitioner’s allegations of error and injustice on 5 February 2021 and, pursuant to its regulations, determined 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 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 and Petitioner’s rebuttal to the AO. 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. Petitioner enlisted in the Marine Corps on 16 August 1999. On 23 August 2000, the evaluating physician and Orthopaedic Department Head at Naval Medical Center, , informed Petitioner’s Commanding Officer (CO) that Petitioner had been diagnosed with chronic bilateral patellofemoral syndrome but was fit for full duty and not considered physically disabled. After two periods of limited duty, on 20 August 2001, a Medical Board referred Petitioner’s case to the Director, Naval Council of Personnel Boards along with the CO’s non-medical assessment which recommended separation. On 11 September 2001, Petitioner was issued “Orders Home Pending Final Disposition of Physical Evaluation Board Proceedings” to be executed on 1 October 2001. d. In the days following the terrorist attacks of September 11th, Petitioner stood security guard duty. His record is incomplete in that it does not contain all the documents pertaining to his administrative discharge. Based on his DD Form 214, it appears Petitioner submitted a written request for discharge for the good of the service in lieu of trial by court-martial. Prior to submitting the request, he would have been required to confer with qualified military counsel, at which time he would have been advised of his rights and warned of the probable adverse consequences of accepting such a discharge. Petitioner’s request was granted, and his CO was directed to discharge him for the good of the service with an other than honorable (OTH) character of service. He was discharged on 1 February 2002. e. On 19 June 2017, the Naval Discharge Review Board (NDRB) concluded there was no impropriety in Petitioner’s discharge but determined equity warranted upgrade of Petitioner’s character of service to general, under honorable conditions (GEN) . f. Petitioner contends the following in his current submission and in the NDRB package he submitted to the Board for consideration: 1) Upon reporting back to his command on 11 September 2001, he was told he would be standing guard. He contends he did not volunteer and was not given an option. Further, Petitioner contends he should not have been standing guard because of his medical condition and his limited duty status. Additionally, Petitioner contends that his watch station was the only post that was not doubled up so he did not have another Marine to rotate with and he fell asleep standing up after nine hours of continuous watch. He was guarding an aircraft, at a post that consisted of about a 30 square foot area, and the only individuals who had access to the area were those who had been authorized to work and/or be on the aircraft. 2) It was demonstrated through testimony from , verbal at NDRB and letter format to the Board, that Petitioner did not threaten anyone. Specifically, Petitioner contends he was charged with threatening to kill another Marine. He explains that “during a mutually understood conversation that any comments made were between friends” he told , “I could kill you for getting promoted to Sergeant of the Guard and out of our squad. None of this would have happened if you were still our squad leader.” Petitioner further contends the Corporal responded “I could kill you for being so stupid and not telling me sooner before this happened.” This conversation was discovered by the chain of command which deemed it to be serious. In response, the command initiated legal proceedings. 3) He was not the only Marine that fell asleep on duty that night. Petitioner contends two other Marines received nonjudicial punishment (NJP) for falling asleep on duty but their punishment was suspended in consideration of the circumstances surrounding the events. 4) His post-service record demonstrates that he has been an upstanding citizen who centered his life around serving others. He has served as a firefighter, employee of the Department of Defense, installed over 80 wheelchair ramps for veterans, and maintained certifications and training. In support of his contention, ten advocacy letters were submitted along with supporting documentation and countless pictures. 5) The First Sergeant “took the opportunity to overcharge me and bully me out of the Marine Corps.” Specifically, Petitioner contends First Sergeant denied his request mast to see the CO stating there was a conflict of interest, intentionally misinformed him that he was facing a bad conduct discharge and six months in the brig, and misused the rules and regulations causing Petitioner to incur debt. He further contends First Sergeant unjustly placed him in pre-trial confinement and, after the initial hearing officer released him from confinement, confined him to his barracks room with almost no contact with anyone. Petitioner also contends First Sergeant convinced him that he should not contest separation in lieu of trial by court-martial 6) The judge advocate assigned to him recommended he “not fight this and take the separation in lieu of trial by court-martial” even though Petitioner was in the process of being medically separated. 7) He was suffering from undiagnosed Post-Traumatic Stress Disorder (PTSD) and depression. In his rebuttal to the AO, Petitioner explains the emotional circumstances he was facing at the time of discharge and why, as a Marine, he would never admit a psychological problem. g. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 9 December 2020. The AO states the in-service records do not contain direct or indirect evidence of a diagnosis of PTSD or psychological/behavioral changes which may have indicated any mental health condition. Further, the AO noted Petitioner did not indicate he was experiencing any mental health symptoms during his military service, disciplinary process, or administrative separation. Additionally, although he has contended he has a post-discharge PTSD diagnosis, Petitioner has not provided evidence to support the claim or any evidence linking his post-discharge PTSD diagnosis to his military service or to his misconduct. Based on the available evidence, the AO concludes there is insufficient objective evidence Petitioner incurred PTSD as a result of his military service that may have mitigated his misconduct. h. Petitioner’s rebuttal to the AO was received on 5 January 2021 and a duplicate copy was received on 12 January 2021. The statement and medical notes were submitted to the Board for consideration. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants partial relief. The Board reviewed his application under the guidance provided in references (b) through (e). Even under the liberal consideration standard, the Board discerned no procedural defect, impropriety or inequity in Petitioner’s discharge. The Board concurred with NDRB’s determination that his characterization of service should be upgraded to general, under honorable conditions, but concluded there was insufficient evidence of an error or injustice warranting further upgrade to honorable because his misconduct, especially considering the post-9/11 uncertainty in the aftermath of the terrorist attacks on our soil, outweighed the positive aspects of his military record. Even considering the testimony of and applying liberal consideration, the Board concluded Petitioner did not overcome the presumption of regularity with respect to the command’s decision to adjudicate his misconduct of falling asleep on watch and making a threatening statement to the Sergeant of the Guard. Further, presuming regularity in the absence of persuasive evidence to the contrary, the Board presumed Petitioner requested discharge to escape trial by court-martial after consulting counsel, admitting guilt, and having a complete understanding of the negative consequences of his actions. The Board concluded that Petitioner’s service has been appropriately characterized as general, under honorable conditions and his reentry code should remain as “not recommended for reenlistment.” However, considering Petitioner’s post-service record and applying reference (e), the Board determined that his narrative reason, separation code, and separation authority should be changed to “secretarial authority.” RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating his narrative reason for separation as “secretarial authority,” separation code as “JFF1,” and separation authority as “MARCORSEPMAN 6421.” 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.