DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3314-21 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER USMC Ref: (a) 10 U.S.C. § 1552 (b) SECDEF memo of 3 Sep 14, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD” (c) PDUSD memo of 24 Feb 16, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI” (d) PDUSD memo of 25 Aug 17, “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” (e) USD memo of 25 Jul 18, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 w/attachments (2) Case summary (3) BCNR, Advisory Opinion of 12 Aug 21 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with this Board requesting an upgrade to his discharge to reflect an honorable characterization of service. Enclosures (1) through (3) apply. 2. The Board consisting of Ms. Mr. , and Mr. reviewed Petitioner’s allegations of error and injustice on 27 August 2021, and pursuant to its regulations, determined that 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 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 qualified mental health provider, which was previously provided to Petitioner. 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 waive the statute of limitations and review the application on its merits. c. Petitioner enlisted in the Marine Corps and began a period of active duty on 12 May 1998. On 26 April 2000, Petitioner was found guilty at summary court-martial for two specifications of disrespect and contempt toward a superior noncommissioned officer. On 18 August 2000, Petitioner received nonjudicial punishment (NJP) for disrespect and wrongful use of marijuana. d. On , Petitioner was found guilty at special court-martial for 27 days of unauthorized absence (UA), disobeying a lawful order and breaking restriction. Petitioner was sentenced to a bad conduct discharge, confinement for 49 days, and forfeiture of $670.00 pay per month for three months. Petitioner was discharged from the Marine Corps on 13 February 2004, due to the court martial conviction, and received a bad conduct discharge and a reentry (RE) code of RE-4. e. Petitioner sought an upgrade to his discharge characterization before the Naval Discharge Review Board (NDRB). Petitioner contended before NDRB that he was entitled to clemency due to his post-service conduct. On 9 April 2009, NDRB notified Petitioner that his discharge was to be changed to reflect an under other than honorable characterization of service rather than a bad conduct discharge. f. In his application to the Board, Petitioner requested an upgrade to his discharge characterization. Petitioner asserts that he is entitled to liberal consideration due to Post Traumatic Stress Disorder (PTSD). Petitioner submits a private psychiatric examination and a personal statement in support of his application. Petitioner states that while he was stationed in he was physically assaulted by a lance corporal and received alcohol counseling for underage drinking. He contends that he reported to where his corporal physically threatened him, hit him, and kicked him. Petitioner states he was placed in a shipping container guarded by members of his squad. Petitioner also provides explanation for the circumstances surrounding the violation of Article 112a (he allowed friends to smoke in his vehicle) and the period of UA (was going to his attorney’s office, received a call during which he was told he was breaking restriction, got scared and drove off base, remaining absence for in excess of 20 days). g. As part of the review process, a Mental Health Advisor reviewed Petitioner’s contention that he suffered from a mental health condition and as such should receive a better characterization of service. The Advisory Opinion found that the preponderance of objective evidence supported Petitioner’s contention that he suffered from PTSD at the time of his military service and that some of his in-service misconduct could be mitigated by PTSD. CONCLUSION The Board reviewed Petitioner’s request in accordance with references (b) through (e), and carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in his case in accordance with the Wilkie Memo. The Board reviewed the Advisory Opinion issued in August 2021, and took particular note of the buddy statement submitted on behalf of Petitioner. The Board substantively concurred with the conclusions of the Advisory Opinion and found the buddy statement of support compelling. The Board determined that in consideration of the Petitioner’s mental health conditions and noting the difficulties Petitioner faced in Twenty-Nine Palms with his command, that Petitioner is entitled to an upgrade to his characterization of service from other than honorable to general. The Board found that although Petitioner’s mental health condition mitigated his misconduct, he was not absolved of complete responsibility for his actions. Given his summary court-martial, his NJP, and the special court-martial conviction, the Board found that a general discharge was more appropriate than an honorable discharge. In view of the above, the Board directs the following partial corrective action. RECOMMENDATION: That Petitioner’s be issued a new DD Form 214 to indicate that on , he was discharged with a general (under honorable conditions) character of service, secretarial authority narrative reason for separation, JFF1 SPD Code, and MARCORSEPMAN PAR 6214 separation authority. 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. 9/15/2021 Excutive Director