From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 w/attachments (2) Sr Medical Advisor CORB ltr 1910 CORB: 002 of 28 Jan 20 (3) Director CORB ltr 1910 CORB: 001 of 4 Feb 20 1. Pursuant to the provisions of the reference, 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 change his narrative reason for separation to disability or secretarial authority and to upgrade his characterization of service to honorable. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 19 March 2020 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 Petitioner’s 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 regulation within the Department of the Navy. b. Petitioner entered active-duty service with the Navy in April 2001 and served as a Hospital Corpsman. His period of active duty was successful initially, including a brief tour in in 2004. In 2006, Petitioner was treated for lower back pain and underwent nasal surgery. He was prescribed pain medication, and his treatment for pain continued into 2007. In early 2007, Petitioner was arrested by civilian authorities attempting to obtain oxycodone using a prescription he stole from a provider and forged. He was eventually assigned counseling and treatment for his misconduct but not convicted. c. Petitioner was seen for his first mental health treatment on 23 April 2007. He was diagnosed with major depressive disorder single episode, opioid abuse, pain disorder associated with psychological facts and general medical condition, nicotine dependence, and back pain. No medical board was convened due to his pending administrative separation associated with his civilian misconduct. He was seen for his separation physical on 29 May 2007 and released without limitations. On 29 May 2007, Petitioner was discharged by reason of misconduct due to commission of a serious offense, with a general characterization of service. There is no evidence that Petitioner was notified of administrative separation utilizing board procedures as required by his years of service. d. After his discharge, the Department of Veterans Affairs (VA) rated Petitioner for anxiety disorder at 30%. He was later diagnosed with post-traumatic stress disorder and assigned an increased rating of 70%. The Naval Discharge Review Board denied Petitioner’s request for an upgrade to his characterization of service in 2012. e. In advisory opinions (AO) at enclosures (2) and (3), the office having cognizance over Petitioner’s request to change his narrative reason for separation to disability determined that the evidence did not support relief. The advisory opinions determined that a review of Petitioner’s record did not support a finding that his duty performance was impaired by his disability conditions. Copies of enclosures (2) and (3) were previously provided to Petitioner for comment on 11 February 2020. No response was received to the AOs. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial relief in the form of changing his narrative reason for separation to Secretarial Authority. The Board concluded that the Navy failed to properly notify Petitioner utilizing administrative board procedures, as required by the MILPERSMAN, due to his years of active-duty service that totaled over 6 years at the time of his discharge from the Navy. In making its decision to recommend changing Petitioner’s narrative reason for separation, the Board concluded that changing it to disability was not supported by the preponderance of the evidence. In this regard, the Board substantially concurred with the AOs contained in enclosures (2) and (3). Specifically, the Board determined that Petitioner’s record of service does not support a finding that he met the standard for unfitness for continued naval service—i.e., that he was unable to perform the duties of his office, grade, rank, or rating as a result of a disability condition. Instead, Petitioner’s record shows he was performing within fleet standards despite the existence of disability conditions and, more likely than not, could have continued his active-duty service but for his civilian misconduct. Additionally, the Board concluded that Petitioner was not eligible for disability processing as a result of his administrative separation for misconduct due to commission of a serious offense. Despite the Navy’s failure to properly notify him of administrative board procedures, the Board determined that the basis for his administrative separation existed and he was eligible to be processed for administrative separation for misconduct. Despite the application of liberal consideration, the Board found insufficient evidence to support a finding Petitioner was not mentally responsible for his misconduct. Based on this finding, the Board found that his pending administrative separation for misconduct would have superseded any disability processing regardless of the issue of fitness of continued naval service. Based on this finding, the Board did not find Petitioner’s post-discharge Department of Veterans Affairs rating probative. Finally, the Board determined that Petitioner’s characterization of service remains appropriate and should not be changed. In making this finding, the Board applied liberal consideration to the evidence but determined that the seriousness of his misconduct outweighed the mitigation offered by his diagnosed mental health condition. The Board concluded that Petitioner’s theft of a prescription form and forging a prescription was a serious offense. In the Board’s opinion, such misconduct took planning and premeditation that could have easily qualified for an other than honorable (OTH) characterization of service. Moreover, the Board determined that Petitioner violated a special position of trust as a Hospital Corpsman to protect against these types of abuses. Therefore, the Board determined that Petitioner’s record easily met the criteria for a general (under honorable conditions) characterization of service since the Board found that his misconduct involved one or more acts of omissions that constitute a significant departure from the conduct expected of members of Naval Service—specifically, his abuse of a special position of trust combined with his premeditated efforts to wrongfully obtain a controlled substance. In the Board’s opinion, Petitioner already received the benefit of significant mitigation since he received a general characterization of service rather than an OTH. The Board also considered the fact Petitioner remains eligible for VA compensation and care despite his serious misconduct. Based on these findings, made after the application of liberal consideration, the Board concluded that no error or injustice exists warranting corrective action. RECOMMENDATION In view of the above, the Board directs the following corrective action. Petitioner’s naval record be corrected by changing the narrative reason for separation to “Secretarial Authority” along with any other required changes to Petitioner’s DD Form 214 consistent with the change in narrative reason for separation. 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 Regulations, 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.