Docket No: 2758-21/ 8175-18 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER 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. 2. The Board, consisting of , and , reviewed Petitioner’s allegations of error and injustice on 25 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. In its review of Petitioner’s case, the Board noted that the social security numbers indicated on Petitioner’s current and previous applications, copy of the social security card submitted by Petitioner, and his Record of Emergency Data form are the same; however a different social security number is indicated on his DD 214. d. Petitioner entered a period of active duty in the Marine Corps on 30 June 1966 at the age of 17. He served as a batteryman with the military occupation specialty code of 0811.1 e. Petitioner participated in multiple operations in the from approximately 27 January 1967 to 22 January 1968. Petitioner’s service history is significant for having been awarded the Vietnamese Service Medal with two stars, Vietnamese Campaign Medal with one device, and the Combat Action Ribbon. f. On 19 August 1968 Petitioner received nonjudicial punishment (NJP) for a one day period of unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ). g. Petitioner received a second NJP on 10 October 1968 for a six hour UA in violation of Article 86, UCMJ. h. On 29 October 1968 Petitioner received a third NJP for another one day period of UA in violation of Article 86, UCMJ. i. Petitioner received a fourth NJP on 7 November 1968 for failure to go at the time prescribed to his appointed place of duty in violation of Article 86, UCMJ. j. On 30 January 1969 Petitioner was convicted by special court-martial of breaking restriction and three specifications of UA for a total of 56 days in violation of Articles 134 and 86, UCMJ.2 k. On 28 July 1969 Petitioner was convicted by civil court for receiving a stolen motor vehicle.3 1 Petitioner’s date of birth is . 2 The sentence adjudged was to forfeit $96.00 per month for six months, to be confined at hard labor for six months, and to be reduced to pay grade E-1 (Private). l. Petitioner was advised of administrative separation processing on 31 July 1969 by reason of misconduct due to conviction for receiving a stolen motor vehicle and an established disregard for military discipline and order. Petitioner waived his procedural rights the same day. m. On 21 August 1969 Petitioner received his final NJP for a six day UA in violation of Article 86, UCMJ. n. Petitioner was discharged on 21 August 1969 with an other than honorable characterization of service. o. Petitioner contends he served his country honorably during and in the Vietnam War, and has PTSD as a result of his service. He states he had his first killed in action at the age of 19 and cannot elaborate on his time served in Vietnam because it is too painful and upsetting to visit those memories. He further states he was discharged due to being AWOL. He contends his mother was ill, he needed to be with her, requested a hardship (discharge) but it was denied. p. In support of his application, Petitioner provided a letter from his Department of Veterans Affairs (VA) board certified psychiatrist documenting Petitioner’s diagnosis of PTSD from his Vietnam experiences. 4 The provider stated, “I understand [Petitioner] was involved in multiple traumatic events during his first months in Vietnam in 1967. He was involved in killing a 15-year-old North Vietnamese bomber and witnessed several close friends dying in multiple fire fights that he took part in during this time he was serving in the United States Marines.” The provider further states that in his opinion, Petitioner’s psychiatric symptoms related to his PTSD, affected his behavior, judgment, and other mental symptoms and these symptoms should be seen as mitigating factors in his misconduct. q. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and provided an AO dated 3 May 2021. The AO noted that although the VA provider opined that Petitioner’s misconduct should be mitigated by his PTSD, no explanation was provided that established a nexus between Petitioner’s post-discharge diagnosis of PTSD and his in-service misconduct. Consequently, the AO concluded that the preponderance of available objective evidence contemporary to Petitioner’s military service, failed to establish Petitioner suffered from PTSD at the time of his military service or PTSD could mitigate his in-service misconduct. r. Petitioner was denied relief by the Board on 21 November 2019.5 3 Petitioner was sentenced to the Reformatory Youth Correction Center, suspended, three years probation. 4 The letter is undated; however, the provider states he has been involved in the primary psychiatric care of Petitioner since 6 July 2017. 5 Petitioner contended he was attending to his mother’s medical needs while in a UA status. 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 that as a grant of clemency, his characterization of service should be corrected to reflect honorable. The Board applied liberal consideration in accordance with the references; however concurred with the AO and found insufficient evidence to determine a nexus between Petitioner’s post-service PTSD diagnosis and his misconduct. In addition to applying liberal consideration to Petitioner’s mental health condition 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 combat history; the provider’s credible letter describing Petitioner’s diagnosis and symptoms; that Petitioner suffered from traumatic experiences while serving in combat in Vietnam even though his provider did not provide an explanation that established a nexus between Petitioner’s post-discharge diagnosis of PTSD and his in-service misconduct; Petitioner’s assertion that he has sought and received mental health treatment from the VA to rehabilitate himself; volunteered to serve in the Marines at the age of 17; relative youth and immaturity at the time of his misconduct; and the passage of time of over 52 years since Petitioner’s discharge. Furthermore, in the interests of justice and in light of the potential for future negative implications, the Board further determined Petitioner’s narrative reason for separation, separation authority, and separation code should be changed to “Secretarial Authority.” RECOMMENDATION: In view of the above, the Board directs the following corrective action: That Petitioner be issued a new DD Form 214 reflecting that his service was characterized as “Honorable,” that the narrative reason for his separation was “Secretarial Authority,” that his separation authority was “MARCORSEPMAN 6214,” that his separation code was “JFF1,” and his reentry code was “RE-1J.” Additionally, that Petitioner’s DD Form 214 be corrected to reflect his accurate social security number, the last four numbers being “9529.” That Petitioner be issued an Honorable Discharge Certificate. That no further corrective action should be taken. 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 theBoard 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. 9/14/2021 Executive Director