Docket No: 5014-19  
Ref: Signature Date  
From: Chairman, Board for Correction of Naval Records  
To:   Secretary of the Navy  


Ref: (a) 10 U.S.C. § 1552 
     (b) SECDEF memo, “Supplemental Guidance to MilitaryBoards 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 with attachments 

1.  Pursuant to the provisions of reference (a), Petitioner, a former sailor, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting correction to his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service, change in his narrative reason for separation, and a change to his race classification. 

2.  The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 14 May 2020, 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 naval service 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.  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.  Petitioner enlisted in the Navy on 6 June 1991 after receiving a waiver for his prior drug use. On 14 July 1992, he received nonjudicial punishment for three specifications of unauthorized absence (UA), failure to obey a lawful order on three occasions, and wrongfully altering a military identification card. On 12 November 1992, Petitioner was convicted by special court-martial (SPCM) for an UA that lasted from 15 August 1992 to 7 October 1992 and missing movement.  He was adjudged confinement, forfeiture, reduction in rank, and a bad conduct discharge (BCD).  Although the court-martial review documentation is not in the record, a review of Petitioner’s DD Form 214 reflects the BCD was subsequently approved at all levels of review, and on 28 September 1994, he was discharged.  

d.  Petitioner contends he faced discrimination during service that affected his ability to perform his job.  He contends he “struggled with his racial identity and isolation” and started “numbing these feelings with illegal substances.” He further contends his “self-medication” caused a substance use disorder.  

e. Petitioner, through counsel, further contends reference (d) should be applied to his request as follows: 

1) Petitioner suffered from a substance use disorder which mitigates his UA periods.  

2) Petitioner developed the substance use disorder during service because he was mixed-race which caused him to be ostracized from his unit.  

3) Petitioner’s UA periods were a direct result of his substance use disorder. 

4) Petitioner’s service was otherwise honorable.  He contends his misconduct was minor, non-violent, and without malicious intent. Court of Common Pleas, who overseas Petitioner’s case 

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 reachingfair 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 carefully reviewed Petitioner’s application, weighed all potentially mitigating factors, and considered each of the contentions outlined above.  The Board noted the psychiatric evaluation conducted as part of the discharge process which concluded he was fully responsible for his actions and did not appear to suffer from “substance dependence.” The Board also noted Petitioner disclosed “past use of alcohol and marijuana in social situations” prior to entry and concluded there was insufficient evidence to support Petitioner’s contention that his in-service substance use was more than just use in “social situations.” Applying liberal consideration, the Board concluded Petitioner’s substance use disorder, diagnosed post-service, does not mandate an upgrade but determined partial relief was appropriate.  The Board concluded a BCD was a harsh punishment for the misconduct which led to Petitioner’s discharge but his repeated misconduct, as evidenced by NJP and SPCM, and specifically his extended period of UA, warranted an other than honorable characterization of service.     

The Board considered Petitioner’s request to change his “race classification” but noted the DD Form 214 does not record the service member’s race.  

RECOMMENDATION: 

In view of the above, the Board directs the following corrective action: 

Petitioner be issued a new DD Form 214 indicating the characterization of service as “other than honorable.” 

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 10 May 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 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.