Docket No: 2877-18
May 20 2019

From:  Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy

Subj:  REVIEW NAVAL RECORD OF 

       
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”

Encl:  (1) DD Form 149 with attachments
       (2) Subject’s naval record (excerpts)
       (3) Post-service diagnosis of 23 Aug 16

1.  Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy filed enclosure (1) with the Board for Correction of Naval Records requesting that his narrative reason for separation be changed in light of current guidelines as reflected in references (b) through (d).  

2.  The Board, consisting of, reviewed Petitioner’s allegations of error and injustice on 5 March 2019, 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 Petitioner’s application, together with all material submitted in support thereof, relevant portions of his naval record, applicable statutes, regulations, and policies, and a 23 August 2016 post-service diagnosis.

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 Navy on 19 November 2007.  On 10 March 2010, Petitioner received non-judicial punishment (NJP) for two specifications of failure to obey a lawful order and wrongful use of “Adderall,” a controlled substance.  Subsequently, he was notified of pending administrative separation action by reason of misconduct due to drug abuse.  After waiving his procedural rights, his commanding officer (CO) recommended an other than honorable (OTH) discharge by reason of misconduct due to drug abuse.  The discharge authority approved this recommendation and directed an OTH discharge by reason of misconduct and, on 13 April 2010, Petitioner was discharged.  On 22 December 2015, the Board changed Petitioner’s characterization of service to general (under honorable conditions), based on clemency.  

    d.  On 18 March 2018, Petitioner requested consideration of his case based on an assertion of an undiagnosed and untreated service-connected PTSD.  Petitioner also provided a 23 August 2016 post-service diagnosis from the Department of Veterans Affairs (DVA), enclosure (3).     
  
CONCLUSION:

Upon review and consideration of all the evidence of record, and especially in light of the Board’s previous clemency relief, the Board concludes that Petitioner’s request warrants partial relief.  Additionally, the Board reviewed Petitioner’s application under the guidance provided in references (b) and (c).  Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. 

In this regard, based upon his record of service, the 23 August 2016 post-service diagnosis of PTSD, and Board prior change of Petitioner’s characterization of service to general under honorable conditions, relief in the form of amending the narrative reason of separation to “secretarial authority” is warranted.  The Board noted Petitioner’s misconduct and does not condone his actions.  However, the Board’s decision is based on Petitioner’s evidence as reflected in the service record, the post-service diagnosis, and Board’s previous clemency relief.  The Board was able to reasonably conclude that the PTSD condition existed at the time of Petitioner’s misconduct, and subsequently resulted in his OTH discharge and narrative reason for separation as misconduct drug abuse.  The Board noted that the prior upgrade to general under honorable conditions by the Board demonstrated that the PTSD mitigated Petitioner’s misconduct sufficiently enough to outweigh his discharge.  The Board concludes that no useful purpose is served by continuing to characterize Petitioner’s narrative reason for separation as having been misconduct due to drug abuse, and changing the narrative reason for separation to secretarial authority is now more appropriate.  The Board also determined that a narrative reason for separation of “Family Hardship” is neither warranted nor authorized in regards to Petitioner’s case.  


In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action.

RECOMMENDATION:

That Petitioner’s naval record shall be corrected by changing the narrative reason for separation to reflect “Secretarial Authority” on 13 April 2010, vice “Misconduct Drug Abuse” actually issued on that day.

That Petitioner is issued a new Certificate of Release or Discharge from Active Duty (DD Form 214).   
   
That a copy of this Report of Proceedings be filed in Petitioner’s Naval record.

That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 18 March 2018.

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.

Executive Director