BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 RJO Docket No: 3518-21 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO FORMER MBR XXX XX Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 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 reinstate him to active duty in order to allow his retirement and upgrade his characterization of service to Honorable. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 24 June 2021, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of the naval records, and applicable statutes, regulations, and policies. 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. Petitioner entered active duty with the Marine Corps in May 2003. He deployed multiple times to Iraq and Afghanistan between 2004 and 2013 in support of combat operations. As a result of these combat deployments, Petitioner was eventually diagnosed with Post-Traumatic Stress Disorder and Major Depressive Disorder and referred to the Disability Evaluation System. However, in May 2020, he was convicted by a summary court-martial for multiple specifications of orders violations in addition to obstruction of justice, false official statement, and extra marital sexual conduct. This conviction occurred after a forensic psychiatric examination concluded Petitioner was mentally responsible for his misconduct. As a result of his misconduct, Petitioner’s Physical Evaluation Board (PEB) case was terminated despite a finding that he was unfit for continued naval service with a 100% disability rating due to his mental health conditions. Afterwards, despite a plea for reconsideration from Petitioner’s civilian counsel, Petitioner was administratively separated for commission of a serious offense on 8 February 2021 with a General under Honorable Conditions characterization of service. Post-discharge, the Department of Veterans Affairs granted Petitioner a 100% disability rating. c. Petitioner filed an application with this Board arguing that he was unjustly discharged for minor misconduct that was caused by his mental health conditions. He also asserts that his PEB was terminated without appropriate consideration. Finally, he raises mitigation arguments regarding his combat service and valor. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief. Specifically, the Board determined that sufficient mitigation exists to grant Petitioner an upgrade of his characterization of service to Honorable after applying liberal consideration to the facts of his case. In the Board’s opinion, the seriousness of Petitioner’s mental health conditions, as evidenced by his 100% disability rating from the PEB, was sufficient mitigation to grant Petitioner the upgrade he seeks. In addition to Petitioner’s mental health condition, the Board also considered as mitigation Petitioner’s prior superior service in the Marine Corps that included four combat deployments and promotion to the paygrade of E7 prior to his misconduct. While the Board does not condone Petitioner’s misconduct, it felt his loss of retirement after approximately 18 years of otherwise Honorable service was sufficient punishment for his actions and that he should be allowed to access VA benefits associated with an Honorable characterization of service. Regarding Petitioner’s request to be reinstated to active duty in order to be retired, the Board determined the preponderance of the evidence did not support relief. In reviewing the evidence, the Board found that Petitioner pled guilty to all the charges and specification at his summary court-martial. Since his misconduct and court-martial conviction formed the basis for his administrative separation from the Marine Corps, the Board found no error with his narrative reason for separation or discharge. The Board took into consideration Petitioner’s mental health condition that included his PEB findings and post-discharge VA ratings, but determined, based on the 7 May 2020 forensic psychiatric examination, that he was mentally responsible for his misconduct and appropriately found guilty at his court-martial pursuant to his guilty pleas. Further, the Board found no error with the Marine Corps’ determination to terminate Petitioner’s PEB case. By all accounts, the Board found that Petitioner was allowed to dual process until a General Officer concluded his misconduct processing should take precedence over his PEB case. The Board found no error with this decision since misconduct processing supersedes disability processing unless otherwise determined by a General Officer. Finally, the Board disagreed with Petitioner’s arguments that his misconduct was minor since all of his court-martial offenses qualified for punitive discharges under the Uniform Code of Military Justice. In the Board’s opinion, had the nature of his misconduct been minor, he would not have been referred and convicted by a court-martial. Accordingly, the Board found no error or injustice with Petitioner’s administrative separation from the Marine Corps for commission of a serious offense. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing Petitioner’s 8 February 2021 discharge characterization of service to Honorable. No other changes are required. Petitioner will be issued a new DD Form 214 consistent with this change. 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. 6/25/2021 Deputy Director