DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9861-19 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 (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 MilitaryDischarge 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 (e) USD 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 w/attachments (2) NAVMC 118(9), Combat History – Expeditions – Awards Record, dtd 28 Aug 65 (3) NAVMC 118(12), Offenses and Punishments, dtd 23 Dec 65 (4) NAVMC 118(13), Record of Conviction by Court-Martial, dtd 11 May 66 (5) NAVPERS 3048, Request for Restoration/Clemency, undated (6)DD Form 214 (7) Advisory Opinion of 17 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 that his other than honorable (OTH) characterization of service be upgraded to at least general (under honorable conditions). 2. The Board reviewed Petitioner's allegations of error or injustice on 8 February 2021 and, pursuant to its regulations, the Majority determined that no corrective action is warranted. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include references (b) – (e). 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 the Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner enlisted in the Marine Corps and began a period of active duty on 25 February 1965. See enclosure (6). c. Beginning on 28 August 1965, Petitioner participated in combat operation against communist forces in Vietnam. See enclosure (2). He remained in Vietnam until on or about 24 November 1965. d. On 23 December 1965, Petitioner received nonjudicial punishment (NJP) for an unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ). See enclosure (3). e. On 11 May 1966, Petitioner was convicted by general court-martial (GCM) of an UA from 28 December 1965 to 10 February 1965 in violation of Article 86, UCMJ; three specifications of larceny in violation of Article 121, UCMJ; and two specifications of housebreaking in violation of Article 130, UCMJ. He was sentenced to two years of confinement, forfeiture of all pay and allowance, reduction to private, and a bad-conduct discharge (BCD). See enclosure (4). f. On 27 June 1966, the convening authority reduced Petitioner’s sentence to confinement to 12 months. See enclosure (4). g. Petitioner subsequently sought clemency through the Commandant of the Marine Corps, in the form of a reduction to his sentence to confinement and remission of his punitive discharge with substitution of a general (under honorable conditions) discharge, “due to the fact that [he] had three months pre-trial confinement time which did not count on [his] sentence.”1 See enclosure (5). h. On 17 February 1967, Petitioner was discharged from the Marine Corps based on the sentence of his court-martial under OTH conditions. See enclosure (6). i. Petitioner states that he enlisted in the Marine Corps at the age of 17 and deployed to Vietnam after a shortened boot camp. He describe his combat experience in late October 1965 when the hill his company was assigned to defend was attacked by the Viet Cong, which ultimately resulted in a bulldozer being used the next day to dig a trench to bury the bodies of 103 Viet Cong fighters. He also explained how he became addicted to smoking while in Vietnam to be accepted by his peers, and how this addiction evolved into opium use when he . Finally, he explained how the 30-day restriction that he received for the one-day UA influenced him to go UA again, which ultimately resulted in his court-martial. He claims not to remember the court-martial, any medical treatment, or his defense because he was experiencing withdrawal symptoms from his opium use. 1 It is not clear from the record whether any action was taken on this request, but he was discharged from the Marine Corps approximately three months short the approved 12 month sentence to confinement and his service was characterized as OTH. j. On 21 January 2020, Petitioner was evaluated by a psychiatrist employed by the Department of Veterans Affairs. This psychiatrist reports that Petitioner endorsed symptoms consistent with the criteria for post-traumatic stress disorder (PTSD) related to combat. He also reports that Petitioner reported the use of illicit substances to self-medicate his anxiety, depression, and PTSD symptoms, but that he has been sober for over 20 years. k. Due to the evidence of PTSD, Petitioner’s application and records were reviewed by a qualified mental health professional who provided an advisory opinion (AO) for theBoard’s consideration. Although the AO found no direct evidence of a PTSD diagnosis or psychological/behavioral changes that may have indicated PTSD in Petitioner’s service records, the records did confirm his deployment to and combat service in Vietnam. Further, the AO found that Petitioner’s description of his combat experience, and subsequent development of substance abuse as a maladaptive coping mechanism for his depression and anxiety, are consistent with the experience of service members who develop PTSD from combat. This, combined with the evidence of Petitioner’s post-discharge diagnosis with PTSD, resulted in the AO finding indirect evidence that Petitioner exhibited early symptoms of PTSD, incurred as a result of his military service, and that his misconduct may be mitigated to a significant degree by his PTSD. See enclosure (7). MAJORITY CONCLUSION: Upon careful review and consideration of all the evidence of record, the Majority of the Board found insufficient evidence of error or injustice, and determined that clemency is not warranted. Based upon the evidence of PTSD, Petitioner’s application was reviewed in accordance with the guidance of references (b) – (d). Accordingly, the Majority applied liberal consideration to Petitioner’s mental health condition and the effect that it may have had upon his conduct. The Majority did not question whether Petitioner has PTSD, and believe his condition may have somewhat mitigated his conduct. Unlike the AO, however, the Majority found the connection between Petitioner’s misconduct and his PTSD symptoms to be tenuous at best. Specifically, the Majority could see no connection between PTSD symptoms and Petitioner’s larceny-related offenses. This finding was supported by Petitioner’s own statement duringhis clemency hearing, when he admitted that he had committed his larceny and housebreaking misconduct to provide a means to marry a “local girl on .” In any case, the Majority found that the severity of Petitioner’s misconduct significantly outweighed any mitigation attributable to undiagnosed PTSD symptoms. In addition to applying liberal consideration to Petitioner’s PTSD and the effect that it may have had upon his misconduct in accordance with references (b) – (d), the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (e). In this regard, the Majority considered, among other factors, Petitioner’s post-service PTSD diagnosis and any effect that it may have had upon his misconduct; Petitioner’s combat service in Vietnam and the traumatic effect that it may have had upon Petitioner; that Petitioner has suffered the effects of untreated PTSD symptoms for many years; Petitioner’s relative youth and immaturity at the time of his misconduct; Petitioner’s long­term and active participation in Alcoholics Anonymous and Narcotics Anonymous, reflecting his rehabilitation efforts; Petitioner’s post-service employment record in a profession requiring sobriety; and the passage of time since Petitioner’s discharge. The Majority also considered the fact that the convening authority apparently granted Petitioner significant clemency by reducing his adjudged sentence to confinement by half, and that Petitioner’s official records do not reflect his adjudged punitive discharge. Based upon this review, the Majority determined that the mitigating circumstances were not sufficient to overcome the severity of Petitioner’s misconduct. Accordingly, the Majority determined that an upgrade to Petitioner’s characterization of service is not warranted under the totality of the circumstances. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that no corrective action be taken on Petitioner’s naval service record. MINORITY CONCLUSION: Upon careful review and consideration of all the evidence of record, the Minority of the Board found that relief is warranted in the interests of justice. Contrary to the findings of the Majority, the Minority found the mitigating circumstances sufficient to warrant relief in the interests of justice. Applying liberal consideration, the Minority substantially concurred with the findings of theAO that Petitioner’s misconduct was significantly mitigated by his PTSD symptoms. The Minority believed that this mitigation, combined with Petitioner’s overall record which included combat service in Vietnam, outweighed the severity of the misconduct for which Petitioner was court-martialed and discharged. Accordingly, the Minority determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions). In addition to determining that Petitioner’s characterization of service should beupgraded, the Minority also determined that Petitioner’s narrative reason for separation and separation code and authority should be changed to avoid future negative implications. MINORITY RECOMMENDATION In view of the above, the Minority of the Board recommends that the following corrective action be taken on Petitioner’s naval service record in the interests of justice: That Petitioner be issued a new DD Form 214 reflecting that he was separated from the Marine Corps on 17 February 1967 with a general (under honorable conditions) characterization of service; that the narrative reason for his separation was “Secretarial Authority”; that his separation authority was “MARCORSEPMAN par 6214”; and that his separation code was “JFF1.” That no further corrective action be taken. That a copy of this report of proceedings be filed in Petitioner’s naval record. 4. It is certified that 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 titled matter. 5. The foregoing action of the Board is submitted for your review and action. ASSISTANT GENERAL COUNSEL (MANPOWER AND RESERVE AFFAIRS) DECISION: MINORITY Recommendation Approve (Grant Relief; Upgrade to General (under honorable conditions), Secretarial Authority) Assistant General Counsel (M&RA)