Docket No: 9333-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF XXX XX 8858/0352 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: NR20190009333 of 17 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, change to his narrative reason for separation, and removal of the misconduct remarks 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 22 January 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 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 review the application on its merits. c. Petitioner enlisted in the Marine Corps on 17 July 1988. On 10 October 1989, he received nonjudicial punishment for disobeying a lawful order by not having his uniform squared away. In 1990 and 1991, Petitioner deployed in support of OPERATIONS DESERT SHIELD, DESERT STORM, and DESERT SABER. d. In April 1992, upon learning Petitioner was in the hands of civil authorities after being arrested for robbing a Taco Bell fast food restaurant, Petitioner was notified of pending administrative separation action by reason of misconduct due to commission of a serious offense. e. In his recommendation of 12 May 1992, Petitioner’s Gunnery Sergeant noted Petitioner had developed a “severe ‘short timer’s attitude” in the past few months which required detailed supervision on the simplest of tasks. In his recommendation of 19 May 1992, Petitioner’s First Lieutenant noted Petitioner’s performance had “sharply declined” in recent months and he required close supervision to meet routine missions. f. After Petitioner waived his procedural rights, Petitioner’s commanding officer recommended administrative separation by reason of misconduct with an other than honorable (OTH) characterization of service. The discharge authority concurred with this recommendation and directed Petitioner be discharged with an OTH characterization of service by reason of misconduct due to commission of a serious offense. On 16 July 1992, he was discharged without signing his DD Form 214 because he remained incarcerated. At the time of discharge, Petitioner’s average in service PRO/CON marks were 4.6/4.5. g. Petitioner contends the following: 1) He was discharged with an OTH characterization of service as a result of being imprisoned for robbing a Taco Bell while on active duty. He contends he had returned from a combat deployment where his service was honest and faithful, was under extreme stress, had a child on the way, and was not acting rationally. 2) The quality of Petitioner’s service was honorable because it generally met the standard of acceptable conduct and performance for military personnel. He further contends the positive aspects of his conduct and performance outweigh the negative aspects and points out that “an honorable discharge characterization does not require flawless military service.” As support for his contention that his quality of service was honorable, Petitioner notes he received numerous awards and decorations. 3) Petitioner’s capacity to serve was hindered by his youth, immaturity, and impairment by PTSD. 4) Current discharge policy and procedures are materially different than those that led to his discharge, and had they been in place then, there is substantial doubt that Petitioner would have been issued the discharge he received. He further contends an OTH characterization is inappropriate under current separation procedures because his misconduct did not rise to the present standards for that characterization. Petitioner also contends that the manner in which he was discharged was inconsistent with disciplinary standards at the time of his discharge. 5) Petitioner’s misconduct was an isolated incident and not based on a pattern of behavior that constituted a significant departure from conduct expected of service members. While he threatened the Taco Bell manager, Petitioner contends he did not use actual force or violence to produce serious bodily injury or death. 6) There were numerous errors in Petitioner’s administrative separation processing. He contends he was not afforded an opportunity to request an administrative discharge board and was not being separated in lieu of trial by court-martial so he should have been given, at worse, a general discharge. Petitioner further contends that he was not provided with written notice of “certain rights” or the basis of the proposed separation, including the circumstances upon which the action was based and a reference to the applicable provisions. He also contends he did not know the “separation could result in discharge, release from active duty, or the characterization of service proposed.” Lastly, he contends he was not notified he had the right to consult counsel or be appointed counsel. 7) He was not provided the required pre-separation health assessment to medically evaluate his mental health condition and that, under current instructions, he would have been entitled to the assessment. 8) The requirements of the Kurta Memo have been satisfied because he had a condition/experience that may excuse/mitigate his discharge; his PTSD existed and was experienced during military service; his PTSD excuses/mitigates his discharge; and his PTSD outweighs his discharge. He further points out that his robbery of the Taco Bell was not premeditated, was nonviolent, did not affect the safety of other soldiers, and did not impair his responsibilities while he was on duty. Petitioner also contends he made full restitution, served time, and completed the punishment after 19 months of his three-year sentence due to his good behavior. 9) Post-service accomplishments warrant relief. 10) Petitioner was suffering from symptoms of PTSD upon his return from combat. In support of his contention, he submitted advocacy letters from his girlfriend at the time of his return, a friend, and his brother. The letters described the stark difference between the young man that enlisted in the Marines and the one that returned from combat. h. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 17 December 2020. The AO confirmed Petitioner has been diagnosed with chronic PTSD related to his military service. His in-service records contain evidence of a diagnosis of psychological/behavioral changes which may have indicated a mental health condition. The AO further notes Petitioner was in a combat zone and awarded a Combat Action Ribbon, his ability to perform his duties “sharply declined,” and his misconduct escalated from not having his uniform squared away (1989) to a conviction for armed robbery of a Taco Bell (1992). Although it was also mentioned that Petitioner had “short timer’s” since he was planning to discharge at the end of his enlistment, the AO notes the behaviors associated with “short timer’s” could also have been misinterpreted and were the result of his undiagnosed PTSD. Since Petitioner was not evaluated upon his return from combat, the AO states it is difficult to ascertain how the undiagnosed PTSD affected his decision making and behavior. Further, the AO states Petitioner’s civilian records indicate he experienced symptoms, which had they been addressed earlier, may have prevented the misconduct of armed robbery. Based on the available evidence, the AO concludes there is sufficient direct evidence Petitioner exhibited behaviors associated with PTSD during his military service and that his misconduct may be mitigated by his mental health disorder. 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). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The Board, applying liberal consideration and relying upon the favorable AO, determined there was sufficient evidence to support a finding that Petitioner’s PTSD mitigated his misconduct which led to his OTH discharge. Specifically, the Board noted the AO’s discussion of possible symptoms of his undiagnosed PTSD which, had they been addressed earlier instead of interpreted as “short timer’s” or a “sharp decline,” might have prevented the misconduct of armed robbery. The Board, even though it had a difficult time directly connecting the type of crime to Petitioner’s undiagnosed PTSD, concluded his undiagnosed PTSD mitigated but did not excuse his misconduct. Due to the severity of the crime of armed robbery, the Board was unwilling to upgrade Petitioner’s discharge characterization to an honorable. However, the Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant the relief Petitioner requested regarding his narrative reason for separation and removal of the misconduct remarks on his DD Form 214. The Board, relying on the AO and applying liberal consideration, considered each of the contentions as listed above and determined there was insufficient evidence of an error or injustice in Petitioner’s administrative separation processing, and concluded he was appropriately discharged by reason of misconduct due to commission of a serious offense. Accordingly, given the totality of the circumstances, the Board determined that Petitioner’s request to change his narrative reason of separation and remove the misconduct remarks from his DD Form 214 does not merit relief. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating his characterization of service as “general, under honorable conditions.” 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.