Docket No: 1520-21 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MARINE , 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 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 honorable characterization of service and that his narrative reason for separation be changed to “Secretarial Authority” to include any other appropriate corresponding changes. 2. The Board, consisting of Ms. Mr. , and Mr. reviewed Petitioner’s allegations of error and injustice on 11 August 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 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta 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 considered the advisory opinion (AO) furnished by a qualified mental health provider. 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 interests of justice to review the application on its merits. c. Petitioner enlisted and entered a period of active duty in the Marine Corps on 18 August 1987. On 5 May 1990 Petitioner was in an automobile accident due to no fault of his own when a U-Haul truck cut him off causing an accident. As a result, Petitioner smashed his head into the windshield, lost consciousness, and received six to eight sutures in his head. Petitioner entered into a period of unauthorized absence (UA) from 30 May 1990 to 10 June 1991 terminated by apprehension. On 11 July 1991 a charge of UA in violation of Article 86, Uniform Code of Military Justice was referred against Petitioner to a special court-martial. On 1 August 1991 Petitioner submitted a request for separation in lieu of trial by court-martial (SILT). The separation authority approved Petitioner’s request on 16 August 1991 and Petitioner was separated on 13 September 1991 with an other than honorable characterization of service. d. Petitioner contends he was in a motor vehicle accident while in-service and sustained a severe head injury resulting in cerebral dysfunction and adjustment depression secondary to the injury. He states he did not receive adequate health care from the military and entered into a UA status in order to be properly evaluated and treated. He further contends his misconduct is directly related to his head injury symptoms and need for treatment. e. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 23 July 2021. The AO noted that during his period of UA, Petitioner was evaluated and treated by several civilian physicians and therapists. Petitioner presented a Neuro-Psychological Examination from a Certified Forensic and Neuropsychologist who performed an extensive battery of tests and evaluations and diagnosed him with Residual Cerebral Dysfunction in the Left Frontotemporal Region secondary to his motor vehicle accident, and Adjustment Reaction with Depressed Mood. Furthermore, his separation physical examination included a physician’s note documenting a car accident with Petitioner’s endorsement of head injury, dizziness/fainting, frequent and severe headaches, head injury, and memory loss. Consequently, the AO concluded that the preponderance of objective evidence indicated Petitioner exhibited behaviors associated with TBI incurred during his military service, and that his in-service misconduct could be attributed to his experience of TBI. f. In support of his application, Petitioner provided a personal statement and four character references on his behalf noting his volunteer work with non-profit veterans organizations. g. Petitioner founded a non-profit veterans organization, , in 2018. mission is to engage veterans in the community, has 25 – 50 volunteers, and over 1,100 members (75% veterans). Prior to the COVID-19 pandemic, sponsored 500 events per year to include volunteering at local food banks, passing out water and assisting with registration at sporting events, going to the movies, cookouts, bike rides, and engaging veterans in daily activities to reduce suicide and incarceration. CONCLUSION: The Board reviewed Petitioner’s application under the guidance provided in references (b) through (e). Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants full relief and his characterization of service should reflect honorable. The Board, applying liberal consideration and relying on the AO, determined there was sufficient evidence to support a finding that Petitioner suffered from a mental health condition at the time of discharge. In its deliberations, the Board noted that Petitioner served well with no incidents of misconduct for two years and nine months prior to his automobile accident and head injury. In fact, his proficiency and conduct marks were consistently well above 4.0/4.0 and even at the end of his time in service his average in grade marks were 4.4/4.4 and his average in service marks were 4.5/4.0. Additionally, as highlighted in the AO, “Petitioner presented a credible and convincing account of his accident and subsequent residual symptoms of TBI, supported by medical evaluations at the time of his military service.” Of particular note, the Board found the letter written by Petitioner’s First Lieutenant to the Commanding General requesting that Petitioner receive a general (under honorable conditions) characterization of service at discharge to be especially commendable and compelling. Despite a 13 month period of UA terminated by apprehension, the Lieutenant stated in pertinent part: “Lack of Medical Attention. As a result of the above mentioned effects of his brain injury, [Petitioner] found it very difficult to work. To remedy this he went through the proper channels – his battalion aid station and the Navy hospital. He was turned away from the medical attention he needed and was branded a ‘sickbay commando.’ After three weeks of trying to get medical help, [Petitioner] concluded the Marine Corps did not care about him and he left. While in a UA status he did receive medical attention.” Furthermore, Petitioner’s personal statement submitted with his application is consistent with a personal statement he submitted to the separation authority in conjunction with his SILT request dated 29 July 1991. In the letter, Petitioner describes the accident, how he became very depressed, kept going to sick call every day, and to the Naval hospital. He further describes how the medical providers kept telling him “he was all right” and “there was nothing wrong with him.” Accordingly, the Board found that Petitioner’s condition occurred while in-service, determined an extremely clear nexus exists between the condition and the misconduct, and that the condition mitigates the discharge. In addition to applying special consideration to Petitioner’s condition or experience and the effect that it may have had upon his conduct, the Board 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 Board considered, among other factors, Petitioner’s desire to receive additional treatment by a mental health professional; his honorable service and high proficiency and conduct marks prior to the accident; volunteered to serve in the Marines at the age of 17; relative youth at the time of his misconduct; commendable volunteer work with non-profit veterans organizations; and the passage of time since Petitioner’s discharge. Additionally, although the Board does not condone Petitioner’s misconduct, it was non-violent in nature and seemingly related to Petitioner’s inability to receive appropriate treatment from the Naval medical community when he did ask for help. Based upon this review, the Board determined that the interests of justice warrant upgrading Petitioner’s characterization of service to honorable under the totality of the circumstances. The mitigating effect of Petitioner’s condition or experience upon his misconduct, combined with his post-service accomplishments, and the passage of 30 years convinced the Board that no further purpose is served by characterizing his service as other than honorable. Furthermore, in the interests of justice and in light of the potential for future negative implications, the Board further determined Petitioner’s separation authority, separation code, and narrative reason for separation should be changed to “Secretarial Authority.” Petitioner’s reentry code shall remain RE-4. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “Honorable,” separation authority as “MARCORSEPMAN 6214,” separation code as “JFF1,” and narrative reason for separation as “Determination of the Service Secretary – Secretary of the Navy Plenary Authority.” That Petitioner be issued an honorable discharge certificate. That no further changes be made to Petitioner’s record. 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. 9/13/2021 Executive Director