DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1650-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF 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 Post Traumatic Stress Disorder” (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) USD 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) USECDEF Memo of 25 Jul 2018 “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 with attachments (2) Mental Health Condition Advisory Opinion, Docket No: NR20190001650 of 8 January 2020 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, filed enclosure (1) with a request to upgrade his characterization of service and to change his narrative reason for discharge. Enclosures (1) and (2). 2. The Board, consisting of , reviewed Petitioner's petition containing certain allegations of error and injustice on 9 April 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 his naval service records and his medical records, applicable statutes, regulations, policies, an advisory opinion (AO) from a Navy mental health provider, and Petitioner’s materials in rebuttal to the AO. 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 interests of justice to review the application on its merits. c. Regarding Petitioner’s request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered the case based on the evidence of record. d. Petitioner enlisted in the Navy and began a period of active service on 5 October 1988 at the age of 19. At all relevant times related to his petition for relief, Petitioner was stationed on the USS ( ). On 14 June 1989, Petitioner went to non-judicial punishment (NJP) for the failure to obey a lawful order. In late 1990/early 1991, Petitioner forward-deployed with the USS in support of Operations Desert Shield/Desert Storm. Following Petitioner’s deployment, he went to NJP for offenses including unauthorized absence (UA) lasting 5 days, for missing the movement of the USS while in a UA status, and for simple assault. Petitioner was issued a “page 13” counseling warning documenting his NJP and providing the customary warnings regarding the ramifications of future misconduct. e. On 12 August 1991 Petitioner underwent a Counseling and Assistance Center (CAAC) screening where he revealed that he had both a drug and alcohol problem. On 15 August 1991, a medical officer determined that Petitioner had a cocaine and alcohol dependency. f. On 19 August 1991, Petitioner was notified that he was being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse. Petitioner exercised his right to consult with counsel but expressly waived in writing his rights to submit a written statement to the separation authority and to present his case to an administrative separation board. Ultimately, on 16 October 1991 Petitioner was discharged from the Navy for misconduct with an other than honorable (OTH) characterization of service e and assigned an RE-4 reentry code. g. In short, Petitioner contended that he was suffering from post-traumatic stress disorder (PTSD) resulting from certain combat stressors he experienced during his deployment in support of Operation Desert Storm. Prior to his deployment, Petitioner argued that he served admirably and never had a problem with mental illness. Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service and change his narrative reason for separation. h. As part of the review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed Petitioner’s contentions and the available records and issued a favorable AO dated 8 January 2020. The MD observed that the VA diagnosed Petitioner with PTSD and granted him a service-connected disability for PTSD, and that Petitioner provided a compelling and credible medical history in support of his mental health claims. The MD concluded by opining that it was more likely than not that Petitioner incurred a service-connected mental health condition that mitigated Petitioner’s misconduct. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in references (b) through (e). Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. The purpose of the Secretary of Defense Memorandum (reference (b)), is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “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 because 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. Reference (d) was promulgated in 2017 to resolve ambiguities in light of reference (b), provide clarifying guidance to review boards with the goal to achieve greater uniformity between the services, and also to better inform veterans about how to achieve relief with these types of cases. Similarly, the intent of the Under Secretary of Defense Memorandum (reference (e)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board felt that Petitioner’s diagnosed mental health condition mitigates the misconduct used to characterize his discharge. The Board also concluded that Petitioner’s PTSD-related symptoms and condition as possible causative factors in the misconduct contributing to his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize Petitioner’s service as having been under OTH conditions, and that a general (under honorable conditions) (GEN) discharge under these circumstances is appropriate at this time. Such a discharge characterization issued by the Board will no longer deprive Petitioner of virtually all veterans’ benefits. Notwithstanding the recommended corrective action below, the Board was not willing to grant an honorable discharge characterization. The Board unequivocally did not believe that Petitioner’s record was otherwise so meritorious to deserve an honorable discharge. The Board also specifically noted that Petitioner went to NJP for a serious military offense well in advance of his deployment, and the Board determined that this misconduct in no way could be attributed to any mental health concerns. Additionally, the Board determined that, in fairness to those Sailors who serve honorably and without incident, Sailors should receive no higher discharge characterization than is due. The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge is appropriate. Finally, in light of reference (e), the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that Petitioner only merits a GEN characterization of service and no higher, and that the reentry code should remain “RE-4.” RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the narrative reason for separation should be changed to “Secretarial Authority.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. Petitioner shall be issued a new General (Under Honorable Conditions) Discharge Certificate. 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 or about 5 February 2019. 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 4/24/2020