DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9015-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW NAVAL RECORD OF FORMER MEMBER 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 Encl: (1) DD Form 149 w/enclosures (2) Advisory Opinion, Docket NR20180009015 of 22 Nov 19 1. Pursuant to the provisions of reference (a), Petitioner, a retired Chief Warrant Officer (CWO) in the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting the below corrections to his naval record. His case, which was previously denied by the Board in July 2014 and August 2017, was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). a. Change retirement grade from CWO3 to CWO4 with a corresponding adjustment to retired pay; b. Retroactively promote to CWO5; c. Amend blocks 26 (separation code) and 28 (narrative reason for separation) on Certificate of Release or Discharge from Active Duty (DD Form 214); and d. Remove the 2005 and 2009 driving while intoxicated (DWI) incidents from the entirety of his military record, to include his voluntary retirement application. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 4 December 2019 and 9 December 2019, and, pursuant to its regulations, determined 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 service records, and applicable statutes, regulations, and policies, as well as the enclosed 22 November 2019 advisory opinion (AO) from a qualified Navy mental health professional. 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. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to review the application on its merits. c. On 8 December 2005, Petitioner was convicted by a Virginia state court for DWI, and sentenced to a fine, suspended jail sentence, and restricted driver’s license for one year. On 1 September 2007, Petitioner was promoted to CWO4. While attached to the in , Petitioner was arrested for DWI on 17 October 2009 and subsequently suspended from duty with the joint command and returned for Service reassignment. On 18 May 2010, Petitioner was found guilty of DWI in the, but his conviction was immediately appealed on the grounds of police misconduct. On 10 June 2010, Rear Admiral (RDML) submitted a Final Civil Action Report (FCAR) to the Chief of Naval Personnel (CNP) advising of Petitioner’s DWI conviction and Petitioner’s intent to appeal the conviction. On 13 September 2010, Petitioner was advised by the CNP that he would be required to show cause for retention before a Board of Inquiry (BOI) or, in the alternative, allowed to submit a request for voluntary retirement. On 13 December 2010, Petitioner submitted his request for voluntary retirement. On 30 March 2011, the Deputy Chief of Naval Operations (Manpower, Personnel, Training, and Education) (N1) recommended that Petitioner be retired in the paygrade of CWO3 with a separation code of RNC denoting “unacceptable conduct.” The Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN M&RA) approved this recommendation on 21 April 2011. On 31 October 2011, Petitioner retired as a CWO3. d. Petitioner contends that he was unjustly retired at a lower paygrade despite a clear record of reported unethical and ineffective assistance of his assigned Navy legal counsel, undue command influence, denial of his right to protection under the Military Whistleblower Protection Act (MWPA), violations of Navy self-reporting regulations, and denial of his right to protection from self-incrimination under the Fifth amendment, Military Rules of Evidence, and Article 1137 of the U.S. Navy Regulations. Specifically, Petitioner contends the following alleged errors and injustices: Unethical and Ineffective Assistance of Assigned Navy Legal Counsel (1) Petitioner contends that his assigned legal counsel made numerous errors in her representation of him: (a) Informing Petitioner that he was required to discuss his 2005 DWI incident in his voluntary retirement application. (b) Informing Petitioner that he was required to resubmit his 24 March 2011 letter to the Secretary of the Navy (SECNAV) and route it through the ; ; and the . (c) Providing a “baseless response” when Petitioner requested the legal and/or regulatory basis behind her legal advice. (d) Failing to reveal the identity of her permanent command prior to convincing Petitioner to submit his voluntary retirement application. Specifically, Petitioner contends that his counsel presented her command as the Office of Legal Counsel, United States, but Petitioner later discovered that her parent command was part of the Naval ( ). Petitioner contends that, due to her failure to disclose, he was unable to exercise his constitutional right to due process and request new military defense counsel whose parent command was located outside the and the. (2) Petitioner contends that the “record and paper trail” of his letter submission to the SECNAV and the CNP’s retirement grade recommendation “leave the door open for the possibility of conspiracy” against Petitioner. Mental Health Condition (1) Petitioner contends that the previous Board failed to consider and give proper weight to the professional assessment provided by the Department of Veterans Affairs (DVA) licensed clinical social worker and readjustment therapist/counselor. (2) The DVA medical professional stated “it is highly probable that Petitioner was struggling with Post-Traumatic Stress Disorder (PTSD) during active duty . . . which contributed to his symptoms and his choice to self-medicate since no counseling services were provided.” The mental health professional further stated that, based on his professional experience and research, substance use is a common co-occurring disorder with PTSD. (3) Petitioner contends that he was unknowingly functioning with PTSD while on active duty, and that his DWIs were the result of his service-connected PTSD, which was acquired during his combat operations and experiences in defense of the United States and its allies. No Legal Basis for Retirement Grade Determination Petitioner contends that the Board, in its previous decisions, failed to identify factual law, regulations, constitution, and/or statutes that support its decision to not grant relief with respect to his retirement grade determination. Overall Military Record (1) Petitioner contends that the Board’s previous denial does not give consideration to his overall military service record of more than 27 years and ten months of exemplary active-duty service, which included combat and high-tempo military operations, exercises, training, and unusual arduous duty assignments. (2) Petitioner contends that his numerous awards, fitness reports, and personnel record warrant consideration. (3) Petitioner contends that his personal sacrifices and the tremendous amount of weight, pressure, and responsibilities he carried while rapidly developing, testing, certifying, and deploying hundreds of Department of Defense (DoD) ground, air, and robotic C-IED systems should be considered. He further contends that his service saved the lives of United States, Coalition, and North Atlantic Treaty Organization (NATO) Service members. (4) Petitioner contends that the Board’s previous decision does not take into consideration the multi-national impact, seriousness, or gravity of the work he performed while serving honorably during his active-duty career. Military Whistleblower Protection Act (1) Petitioner contends that the existence of his 2009 DoD Inspector General (IG) Hotline Complaint had a “direct relationship” to his improper removal from . (2) Petitioner contends that his protected communications contained evidentiary proof of abuse of authority and denial of his constitutional rights, and that RDML refusal to forward his protected communications violated his rights under the MWPA and self-reporting regulations. (3) Petitioner contends that he was denied equal protection under the Fifth Amendment and the MWPA because a senior official inquiry was not conducted. He further contends that it was error for the DoD IG to decline to initiate an inquiry. Self-Reporting Regulation (1) Petitioner contends that the information he self-reported to the Special Security Officer, as was his duty to do as one who has been granted a top secret security clearance, was the sole and exact evidence used against him in follow-on disciplinary action. (2) Petitioner contends he was not afforded his due process rights or given proper notice that his self-reported information would later be used as evidence against him for prosecution of separation proceedings. e. As part of the Board’s review, a qualified mental health provider reviewed Petitioner’s assertions and available records and issued an AO on 22 November 2019. The AO highlighted the 29 July 2015 letter from Petitioner’s DVA therapist who has been treating Petitioner since 7 April 2015 after Petitioner was diagnosed on 14 January 2014 by the DVA with PTSD attributed to his military service. The AO noted that the evaluation cited Petitioner’s duty from April 1988 to April 1989 in the and as the primary stressor leading to PTSD, and Petitioner’s assignment in as the onset of his misuse of alcohol as a coping mechanism and attempt to self-medicate. The evaluation also concluded that Petitioner’s continued exposure to traumatic events in his later assignment analyzing videos and photos of IED explosions and their aftermath contributed to his PTSD development. The AO determined that the evaluation and evidence supported Petitioner’s request. The two DWIs can be “conceptualized as a more severe manifestation of this self-medication behavior as it continued to worsen over the years without intervention or treatment.” The AO concluded that there was sufficient evidence that Petitioner’s PTSD more likely than not originated during military service, and that his misconduct can be reasonably attributed to his PTSD given the significant rate of co-occurrence between substance abuse and PTSD. CONCLUSION Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. The Board reviewed the application under the guidance provided in references (b) through (d). Specifically, the Board considered whether the application was the type that was intended to be covered by this policy. The purpose of the Secretary of Defense memorandum is to ease the process for Veterans seeking redress and assist the Boards in reaching fair and consistent results in “these difficult cases.” The memorandum describes the difficulty Veterans face on “upgrading their discharges based on claims of previously unrecognized” mental health conditions. The memorandum further explains that, since mental health conditions were not previously recognized as a diagnosis at the time of service for many Veterans, and diagnoses were often not made until after service was completed, Veterans were constrained in their arguments that mental health conditions should be considered in mitigation for misconduct committed or were unable to establish a nexus between a mental health condition and the misconduct underlying their discharge. The Board noted that, in considering Petitioner’s request for reconsideration, it relied heavily upon reference (d), which is new since the review of Petitioner’s 2016 request, and enclosure (2). Applying the liberal consideration requirement clarified by reference (d), and in light of the AO, the Board determined that there was sufficient evidence to support Petitioner’s contention that he was struggling with PTSD during his active-duty service but differed in the degree to which the PTSD mitigated the misconduct which led to his voluntary retirement. The Board, applying liberal consideration, concluded that, although there was no error or injustice at the time of his retirement, it is unjust for Petitioner’s DD Form 214 to continue to reflect a separation code and narrative reason that denotes “unacceptable conduct” due to the mitigation of his misconduct, based on his post-service PTSD diagnosis which can be attributed to his military service. (The Board differed in its conclusion regarding retirement grade determination, which is discussed in later paragraphs.) The Board, applying liberal consideration and considering each contention outlined above and Petitioner’s overall military record, determined that there was insufficient evidence of error or injustice warranting Petitioner’s request for retroactive promotion to CWO5. The Board noted that there was no indication in Petitioner’s record or submission that he attempted to explain the gap created in the timeline of his fitness reports. Additionally, the Board determined that there was insufficient evidence to support the premise that his fitness report was intentionally delayed so as to create a gap that would be negatively viewed by the promotion board. Further, the Board concluded that the submission of the FCAR, prior to the convening date of the promotion board, was not an act of reprisal nor an error or injustice, even in light of Petitioner’s appeal in the civilian court. The Board analyzed the contentions through the lens and requirements of the MWPA and determined that the evidence establishes that the actions taken as a result of the DWI, to include the submission of the FCAR, would have been taken even if the protected communications had not been made. The Board, applying liberal consideration, determined that it was not error or unjust for the DWI documentation or documents discussing the DWI incidents, such as Petitioner’s voluntary retirement application, to remain in Petitioner’s record. Specifically, although his recently diagnosed PTSD mitigated the misconduct, the Board determined that his command appropriately recorded his civilian misconduct in his record at the time of the misconduct, and it is not unjust for the documentation to remain. Having considered each of the contentions outlined above regarding the administrative actions taken by his command as a result of Petitioner’s self-reported DWI misconduct, the Board determined that there was insufficient evidence of an error or injustice warranting the removal of the derogatory information from his official military personnel file. Additionally, the Board determined that there was insufficient evidence of material error or injustice to support Petitioner’s contentions that he received unethical and ineffective assistance from his assigned Navy legal counsel, which caused him to include the 2005 DWI in his voluntary retirement request. Further, the Board examined Petitioner’s contentions regarding protected communications and analyzed the contentions through the lens and requirements of the MWPA and determined that the evidence establishes that the actions taken as a result of the DWI, to include submission of the FCAR, the resultant requirement to show cause for retention, and the retirement grade determination that followed Petitioner’s voluntary retirement request, would have been taken even if the protected communications had not been made. Lastly, examining Petitioner’s contentions regarding violations of his rights regarding protection against self-incrimination under the various stated authorities and guidance, the Board determined that there was insufficient evidence of material error or injustice to support Petitioner’s contentions. MAJORITY CONCLUSION -- Retirement Grade Determination: The Board, applying liberal consideration as clarified by reference (d), determined that there was sufficient evidence to support Petitioner’s contention that he was struggling with PTSD during his active-duty service, which contributed to his symptoms and his choice to self-medicate. The Board concurred with the AO’s determination that the two DWIs could be conceptualized as severe manifestations of Petitioner’s attempt to self-medicate as his undiagnosed, underlying mental health symptoms continued to worsen over the years without intervention or treatment. The Board concluded that Petitioner’s PTSD mitigated the DWI misconduct that led to his voluntary retirement request and resulted in a retirement grade determination that he should be retired as a CWO3. MAJORITY RECOMMENDATION: In view of the above, the Board directs the following corrective action. Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) indicating his narrative reason for separation as “secretarial authority” and separation code as “JFF.” Petitioner’s retirement paygrade be changed to the paygrade of CWO4, and a complete audit be conducted by the Defense Finance and Accounting Service (DFAS) to determine the back pay and allowances Petitioner is entitled to. No further changes be made to Petitioner’s record. A copy of this report of proceedings be filed in Petitioner’s naval record. Upon request, the DVA be informed that Petitioner’s initial application was received by the Board on 28 August 2013. MINORITY CONCLUSION – Retirement Grade Determination: Upon review and consideration of all the evidence of record, the minority disagrees with the majority that Petitioner’s request regarding his retirement grade determination warrants relief. The minority member considered Petitioner’s repeat DWI misconduct and determined his retirement grade was appropriately downgraded to CWO3. The minority member concluded that Petitioner did not learn from his first DWI, even after the alcohol counseling required by the state court’s order. MINORITY RECOMMENDATION: In view of the above, the minority recommends the corrective action. Petitioner be issued a new DD Form 214 indicating his narrative reason for separation as “secretarial authority” and the separation code as “JFF.” No further changes be made to Petitioner’s record. A copy of this report of proceedings be filed in Petitioner’s naval record. Upon request, the DVA be informed that Petitioner’s initial application was received by the Board on 28 August 2013. 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. The foregoing action of the Board is submitted for your review and action. 1/27/2020 Reviewed and approve MAJORITY recommendation. (Retirement Grade Determination changed to CWO4)